131 Ky. 1 | Ky. Ct. App. | 1908
Affirming.
The appellants, Trimble, Crocker, Riggins, and Empson, filed their petition in equity against the appellee, King, in which they sought to require him to remove the obstruction in and upon a passway, to the use of which they alleged they and the public were entitled. It appears from the evidence that H. M. Trimble for many years prior to 1903 owned the land over which the passway in controversy extended, and that for 50 years or more it was open to.the public and free from gates or other obstruction, and so remained until about 1898, when a tenant or lessee of Trimble erected two gates across it, one at each end; but the erection of these gates did not interrupt the travel, which continued, to some extent at least, until the way was closed to the public J>y appellee. There is some conflict in the evidence as to whether these gates were put up by the consent of Trimble or not. At any rate, they were there when appellee purchased the land from Trimble in July or August, 1902, and when he took possession under his purchase in January, 1903. A few months after appellee took possession, he removed the gates, put several fences across the passway, thereby preventing travel over' it, and soon afterwards cleaned up the old roadbed, stopped up the gullies in it, and made it a part of his farm. The fences were not placed across the passway especially for the purpose of stopping travel on it, but rather to carry out' appellee’s plan in dividing up his farm into fields. In addition to this, at a point where there was a low place in the passway, he made a large and valuable
The suit was filed in April, 1906, more than three years after appellee built the fences across the pass-way effectually obstructing it, and more than two years after the pond was made, the roadway cleaned out, and filled up so as to make it a part of the adjoining land, and the fencing on his farm generally rearranged to conform to the plan adopted after the. passway was closed and had become a part of the adjacent fields. The appellants lived near to or adjoining appellee’s land, and were fully apprised at the time of the fact that he had closed the way and also of the other changes and improvements made. Indeed, these facts were known generally, not only by appellants, but by all others in the neighborhood, or who had any interest in the road remaining open; but no objection was at any time made by any person until this suit was filed. No effort of any description was resorted to to prevent the closing of the road or to warn appellee of the risk he took in making the improvements following the closing. He was permitted, without protest or objection, to expend large sums of money in cleaning and filling up the old roadway, building fences, and the pond, and not until nearly three years afterwards notified that an effort would be made to open the road, which, if successful, would cause him to suffer a loss estimated by more than one witness at $1,000. An examination of the evidence satisfies us that the reason no protest or objection was made to closing the road was because
This passway was an easement to the use of which the public generally was entitled. The long and uninterrupted enjoyment of it gave them the privilege
Applying to the facts of this case the principles announced in the foregoing authorities, we have no difficulty in determining that they may make out a perfect case of equitable estoppel. The parties complaining knew they had a right to the passway. They saw, without protest or objection, appellee close it. They saw the expenditure by him of large sums of money in improvements induced by the closure, and they will not now be heard to dispute bis right to do that which they tacitly consented he might do.
The rule we have announced would not, of course, apply to a public county road, nor would the fact that a few persons might be estopped by their conduct from complaining of obstructions in a passwav work an estoppel on others of the public who had the right to use it, but who did not actively participate or tacitly consent to its being .closed. The estoppel upon which this action is rested must be confined to cases presenting facts like the one before us; that is, to cases in which it appears that all the persons who use the passway and for whose benefit it is kept open consented to having it closed by failing to speak when it was their duty to speak.
Wherefore the judgment of the lower court is affirmed.