126 Ky. 492 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
We gather from the record in this ease that the village of Moreland, which is situated in Lincoln county and upon the line of railroad owned and operated hy appellants, has for its principal thoroughfare the Danville & Hustonville Turnpike Eoad, and that the railroad runs through its corporate limits nearly north and south, crossing the turnpike a considerable distance north of the town and again somewhat south thereof, after running through the town and almost parallel with the turnpike, between 200 and 300 feet distant therefrom. It further appears that the principal business section of the town is situated on the east side of the railroad, and that appellees, with divers Other residents, constitute a
By cdnsent of parties the case was tried upon oral testimony. Owing to the absence from the record of á map, we have had some difficulty in ascertaining the precise location of the passway and places of residence of appellees. "While the evidence is conflicting, we are tínable to say that the judgment is not sustained by its weight. In other words, considered as a whole, the evidence conduces to show that appellees and those from whom they derived title to their lands had for more than 20 years before the institution of the action, and commencing before appellants acquired their right of way, continuously claimed, occupied, and used the passway; that such user was not permissive, but exercised and enjoyed as a matter of right adversely to appellants and their vendors. One witness testified tó a parol grant of the passWay by. the original óWner of the land of which appellant’s right of wáiy is á part. It whs also made to appear
Accepting the correctness of the chancellor’s conclusions of fact, we must conclude that such user of a right of way as appellees and their vendors seem to have enjoyed creates the presumption of a grant. This being true, the burden was on appellants to rebut this presumption by proving that the use of the passway by appellees and their vendors was merely permissive. O’Daniel v. O’Daniel, 88 Ky. 185, 10 S. W. 638, 10 Ky. Law Rep. 760; Bowen v. Cooper, 23 Ky. Law Rep. 2065, 66 S. W. 601; Anderson v. Southworth, 25 Ky. Law Rep. 776, 76 S. W. 391; Chenault v. Gravitt, 27 Ky. Law Rep. 403, 85 S. W. 184; Talbott v. Thorn, 91 Ky. 417, 16 S. W. 88, 13 Ky. Law Rep. 401; Riley v. Buchanan, 116 Ky. 625, 25 Ky. Law Rep. 863, 76 S. W. 527, 63 L. R. A. 642; Commonwealth v. Terry, 27 Ky. Law Rep. 684, 86 S. W. 519; Ray v. Nally, 28 Ky. Law Rep. 421, 89 S. W. 486.
As a railroad company, in the performance of its duties as a common carrier, may require the use of
The pertinency of the last conclusion expressed in the opirnon supra will be better understood when it is suggested that it is elsewhere stated in the opinion that the right of way of the Louisville & Nashville Railroad Company is only 66 feet in width. Moreover, it appears that the railroad company made in
Judgment affirmed.