Beall v. Clore
| Decision Date | 01 June 1869 |
| Parties | Beall v. Clore. |
| Court | Kentucky Court of Appeals |
APPEAL FROM GALLATIN CIRCUIT COURT.
J. J. LANDRAM, For Appellants,
This was an ordinary action for trespasses, alleged to have been committed by the appellant, by entering on the land of the appellee and breaking and passing through his close, and resulted in a judgment against the defendant, from which he has taken this appeal.
It appears that the parties were the owners and occupants of adjacent land, embraced by a tract of one thousand acres, at one time owned by John Scott, under whom both the plaintiff and defendant claimed title as remote vendees, the land of the appellant having been first alienated by Scott; and that the enclosure which it was alleged the defendant broke was a fence but recently erected by the appellee on his land, across what had been for many years before used by the appellant and others as a road or passway.
By the answer, and an amended answer of the defendant, the following matters of defense were, in substance and effect, presented.
1. Admitting the commission of the acts complained of, the defendant pleaded that said route of travel on which the fence was broken was a public highway, and had been established and used by the public as such in traveling to and from the county-seat of Gallatin County and the town of Warsaw for more than twenty years, and that the proprietors and owners of the land in fee over which said road passed, and under whom the present owners claimed, dedicated it to the public as a permanent public highway; and this dedication was made and recognized by those who owned the land on each side of the road by fencing to the edge thereof, and leaving a lane for the public to pass through, and by using the same as a public highway.
2. That as the proprietor and occupant of his said land he was entitled to and had a permanent right of way over the ground on which said fence was erected by the plaintiff, said ground having been appropriated by former owners for the use of the occupants of adjacent lands as a permanent passway, and having been so used and enjoyed, with the consent and acquiescence of the owners under whom the plaintiff claimed, for more than twenty years.
3. That Scott, the original owner of said tract of one thousand acres of land, first sold and conveyed out of it to William Rose the land subsequently acquired by the defendant under the title of Rose; and after the purchase of Rose he made a private passway from his said land to the public road leading from Warsaw to Owenton, through another part of said one thousand acres of land owned by Scott, which was, at the...
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