110 Ky. 973 | Ky. Ct. App. | 1901
-Affirming.
The appellant, Wilfred L. Thompson, instituted this suit in the Marion Circuit Court against appellee, the Louisville & Nashville Railroad Company, to enjoin it from fencing its right of way through his land, and to compel it to remove fences already erected. He alleged, in substance, that he and his brothers and sisters own a tract of 78 acres of land, upon which they now reside, and have for many'years resided, and through which the Knoxville Branch of the Louisville & Nashville Railroad runs; that alongside of the company’s track, and on its right of way, he and his brothers and sisters, and their vendors, have owned and used a passway .leading from their residence to the Lebanon and Loretto county road, for more than 40 years; and that appellee had, without right, closed up and obstructed the passway by building a fence which separated the right of way from their land. The defendant admits that it erected the fence complained of, but denies that plaintiff has a passway over its right of wa.y, and alleges that plaintiff had unlawfully torn down its fence, for which it prays judgment. The case was transferred to equity, and on the trial plaintiff’s petition and defendant’s counterclaim were both dismissed, and both plaintiff and defendant except to the judgment of the trial court, and the case is now here for review.
Substantially the only question to be decided is whether appellant has a legal right to the passway in question. It appears from the evidence that the railroad was surveyed and located over the lands in question in the year 1854, and was constructed during the years 1855 and 1856. At that time Sylvester Thompson and his wife, Mary, who were the grandparents of appellant, owned a tract of 400