Browning v. Davis

• Decision Date: 20 October 1899
• Parties: BROWNING et al. v. DAVIS. [1]
• Court: Kentucky Court of Appeals

53 S.W. 9

BROWNING et al. v. DAVIS. ^[1]

Court of Appeals of Kentucky.

October 20, 1899

Appeal from circuit court, Logan county.

"Not to be officially reported."

Action by E. W. Browning and others against R. B. Davis to enjoin defendant from obstructing a passway. Judgment for defendant and plaintiffs appeal. Reversed.

Selden Y. Trimble and Wilbur F. Browder, for appellants.

S. R Crewdson and M. R. Turner, for appellee.

BURNAM J.

Appellants sought in this action to enjoin appellee from obstructing their passway leading from their farms across the lands of appellee to a point on the Russellville and Rochester road near Mt. Pleasant Church. The right to this passway is claimed both by contract and prescription. Appellee admits the existence of the passway, but denies that there was ever any contract for its use, and alleges that it has always been used by the consent and permission of himself and vendors. The uncontradicted testimony in the case shows that a passway running from a point on the Russellville and Rochester road near where the present passway starts, across the lands of appellee and appellants to an old gristmill near the river, has been in existence for more than 75 years. The gristmill has long since disappeared, but the evidence shows that it was located near the house of appellant Dillon. At that time all of the land was owned by one Isaac Browning. In 1859 he sold off a portion of his land to James Duncan, the vendor of appellee, and at that time the road leading from appellants' farms to the public road was changed by agreement between them so as to pass in front of Duncan's house, instead of behind it. The testimony of Mary Jane Duncan, the widow of James Duncan, and J. C. Duncan, his son, is to the effect that there was a verbal agreement at that time between Isaac Browning, the vendor of appellants, and James Duncan, the vendor of appellee, that this passway should continue to be an open passway for any one who might want to use it, and that it has continued to run exactly where it was located by the parties until the obstruction by appellee, --a period of more than 30 years. In the case of Talbott v. Thorn, 91 Ky. 418, 16 S.W. 89, the right to a passway was based upon a verbal agreement, and in discussing the question in that case the court said: "A private passway is an interest in land, and a verbal conveyance of such way is not enforceable, because of the statute of frauds; but where the grantee of such way has used it for fifteen years the agreement may be used to rebut the idea of such use being permissive, and as establishing it as a right. Indeed, the user pursuant to the agreement for fifteen years is equivalent...