Brown v. Barton

• Decision Date: 18 October 1904
• Citation: 82 S.W. 405
• Parties: BROWN v. BARTON.
• Court: Kentucky Court of Appeals

82 S.W. 405

BROWN v. BARTON.

Court of Appeals of Kentucky.

October 18, 1904

Appeal from Circuit Court, Hickman County.

"Not to be officially reported."

Action by Fred K. Barton against Green Brown. Judgment for plaintiff. Defendant appeals. Reversed.

J. M Brummal & Son, for appellant.

SETTLE J.

In this equitable action the appellant was, by the judgment of the Hickman circuit court, deprived of the use of a passway leading from his residence and farm, over the land of appellee, to the public highway known as the "Columbus and Clinton Road." The judgment complained of also declares the appellee the owner of the passway, and quiets his title to the same. The answer of appellant denied appellee's title to the passway, and averred his (appellant's) ownership thereof by use and possession active, continuous, and adverse to appellee and all others for more than 15 years before the institution of this action. It is questionable whether appellee's possession was such as to entitle him to maintain the action, which is one to quiet title. Although the passway runs over his land, his possession thereof was not exclusive, nor was it greater than that of appellant, who was also in possession of the passway. Indeed, his use of it had been much longer than that of appellee. Although appellee's title to the passway and the land over which it runs were denied by the answer of appellant, no title papers appear to have been introduced in evidence by him. He did, however, prove his ownership of the land by the actual, adverse, and continuous possession of himself and vendors for more than 15 years, but such possession was, as stated, not more than half as long as that proved by appellant as to the use of the passway in controversy by himself and vendors.

It appears that the lands of appellant and appellee were originally owned by one Bullock, and that the land of appellant was purchased from Bullock by Bridgman. Later the land owned by appellee was purchased by Hubbard appellee's vendor, from Bullock's heirs. Hubbard also bought of Bridgman the land now owned by appellant, and let America Darling have it. She failing to pay for it, Hubbard again became the owner, and thereafter sold and conveyed it to appellant. Hubbard or his heirs continued to own appellee's land until a year or two before the institution of this action, when the heirs sold it to appellee's father, who gave it to appellee. It appears from the evidence, and is in fact not denied, that the passway in controversy was established by Bridgman more than 30 years ago, and while he owned appellant's land, and he used it constantly down to the time he sold the land to Hubbard for America Darling, and that she and her family used the same passway all the time she owned the land. When Hubbard got the land of her, he at once sold and conveyed it to appellant, which was about 15 years before this action was commenced, from which time until the rendition of the judgment in this case depriving him of it appellant used the passway claiming it as his own, adversely to appellee, his vendors, and all others. The evidence also shows that appellant, as a tenant of America Darling, lived on the place now owned by him two or three years before his purchase of it, and he testified that during that time she claimed to be the owner of the passway, and used it all the time without interference from any source. There is no evidence, except the testimony of appelle...