167 Ky. 717 | Ky. Ct. App. | 1916
Opinion oi? the Court by
Affirming.
This action was brought by Martha Miller and her children to enjoin defendants, J. R. Winlock and E. D.
. The farm which the plaintiffs own was acquired by Mrs. Miller’s former husband and the father of her children in the year 1904. In the year 1910 the defendants purchased a tract of land containing about thirty-eight acres and known as the Brashear orchard, and also leased an adjoining tract. All of this land they planted in fruits of various kinds. According to their evidence the roadway which runs across the Miller land was an old roadway in 1867, and has never been changed, except in two or three instances to avoid the mud. .They further show that the roadway was frequently used by members of the public for the purpose of hauling and passing to and fro. Their evidence also tends to show that the former owners of the orchard tract made use of the roadway in question for the purpose of reaching the school house and traveling to Bowling Green. According to the evidence for plaintiffs, their land has never been inclosed. There are several roadways in the vicinity of the road in question. These roadways were used occasionally by persons desiring to haul timber. The right of persons to use the roadway in question was frequently denied, and even plaintiffs themselves and certain former owners of the orchard tract sought to buy a roadway over plaintiff’s tract. The latter statements, however, are denied by defendants, who insist that they desired merely to purchase the right to make a change in the roadway, and by the former owners, who declared that they desired to buy the land itself. The evidence further shows that the orchard itself was not inclosed until recently and that there were several passways through the orchard. Indeed, the particular road, the right to use which defendants are now claiming, was changed when defendants purchased the orchard and has been abandoned beyond the orchard. Plaintiffs’ evidence further shows that defendants have two other outlets from their farm, while the evidence for defendants is that these outlets, by reason of the character of the country and the great expense of constructing roads, are practically impossible.
In. determining whether or not the right to a passway Ras been acquired by prescription, there is a marked dis
Judgment affirmed.