Talbott v. Thorn

• Decision Date: 07 April 1891
• Citation: 91 Ky. 417,16 S.W. 88
• Parties: TALBOTT v. THORN et al.
• Court: Kentucky Court of Appeals

16 S.W. 88

91 Ky. 417

TALBOTT v. THORN et al.

Court of Appeals of Kentucky.

April 7, 1891

Appeal from court of common pleas of Bourbon.

"To be officially reported."

J. H Brent, Lockhart & Lyng, and C. T. Hanson, for appellant.

McMillin & Talbott, for appellees.

BENNETT J.

The appellant sued the appellees for trespassing upon a piece of woodland belonging to the appellant, which consisted of traveling across the same, etc. The appellees plead that they had the right of private passway across said woodland, and travel complained of was pursuant to that right; consequently they were not trespassers. The weight of the evidence establishes the following facts: The appellant, in 1867 obtained an order from the Bourbon county court to discontinue a part of the "Gregory Precinct District Road," which is in shape of three sides of a square, and leads into the "Mt. Gilead and Steel's Ford Turnpike Road," and which district road was the appellee's father's outlet to said pike, etc., and open and construct, in its stead, a road leading across the appellant's woodland from a point designated on the map, filed in this action, as "No. 3," and running to a point in said pike designated on said map as "No. 2;" that the appellant was to open and construct said road at his own expense, and he was otherwise to erect and maintain gates at said points and other places; which gates he erected and maintained, but never opened and constructed said road until after this suit was brought, in 1888. Also, the appellees' father, who owned adjoining land, and used the Gregory Precinct road, opposed the discontinuance of a part of it, and the opening of the new road, as it affected his convenience; and in order to quiet and remove the opposition the appellant verbally agreed with said Thorn that he and his family should have a right of passway from a point in said Gregory road designated on the map as "No. 4," across the appellant's woodland, to the point 2 at said turnpike; and, pursuant to said agreement, gates were erected at points Nos. 4 and 2 as the termini of said right of way which way between said termini the appellees, pursuant to said agreement, have used ever since,--a period of 19 years. The appellant contends that, as the agreement was verbal, it was not a valid grant of a right of private passway; hence the appellees' right to it was permissive only, which could at any time be terminated by the appellant, and he having withdrawn the permission, the appellees were thereafter trespassers. It is true that a private passway is an interest in land, and a verbal conveyance of such way is not enforceable, because of the statute of frauds, etc.; but, where the grantee of...