Burch v. Blair

• Decision Date: 10 June 1897
• Citation: 41 S.W. 547
• Parties: BURCH v. BLAIR.
• Court: Kentucky Court of Appeals

41 S.W. 547

BURCH v. BLAIR.

Court of Appeals of Kentucky.

June 10, 1897

Appeal from circuit court, Nelson county.

"Not to be officially reported."

Action by Zack J. Blair against Teresa Burch to compel defendant to reopen a passway. Judgment for plaintiff, and defendant appeals. Affirmed.

John S Kelley, for appellant.

John D Wickliffe, for appellee.

BURNAM J.

This suit was brought by appellee to compel appellant to reopen an old passway which had been closed up by appellant. The facts as they appear from the evidence, are that Richard Head, the father of appellant, owned a tract of land lying on both sides of the Louisville & Nashville Railroad, near Newhope in Nelson county, Ky.; that for more than 40 years there had been a passway through his land and that of his brother William, running from the Newhope and Bardstown turnpike, across the railroad, and over the lands now owned by appellant, towards the village of Newhope. After the death of her father, appellant and her husband seem to have acquired all the lands which her father had died possessed of, and subsequently sold all that part of it lying east of the railroad to one McDaniel. McDaniel sold his holdings to one Bowling, and sold a small lot of about 2 3/8 acres to appellee, Blair. Blair purchased his lot of McDaniel in 1873, and soon thereafter built a residence on it, which he occupied for some years, and, since he ceased to occupy it as a residence, has rented it to other parties. The testimony introduced in favor of appellee tends to establish as a fact that this passway was used by the public generally for more than 40 years, over substantially the same line; and that, some 5 or 6 years before the institution of this action, appellant, having disposed of all her interests east of the railroad, closed up the passway. Appellant admits the existence of the passway, and its use by the public, but claims that it was never established by express grant or condemnation; that its use by the public was only permissive; and that it was originally established as a matter of convenience by her father and uncle, who owned land on both sides of the railroad.

The evidence shows very clearly that when appellee bought the small tract of land owned by him, and erected his dwelling thereon, the passway from this residence over the lands of appellant was open, and that he was undisturbed in its use for many years, no question being raised...