Calvert v. Weddle

• Decision Date: 19 February 1898
• Citation: 44 S.W. 648
• Parties: CALVERT v. WEDDLE.
• Court: Kentucky Court of Appeals

44 S.W. 648

CALVERT v. WEDDLE.

Court of Appeals of Kentucky.

February 19, 1898

Appeal from circuit court, Mason county.

"Not to be officially reported."

Action by John M. Weddle against M. Calvert. From a judgment for plaintiff, defendant appeals. Affirmed.

George W. Adair and E. L. Worthington, for appellant.

A. M J. Cochran, for appellee.

WHITE J.

Appellant and appellee own adjoining farms in Mason county; that of appellant lying between the land of appellee and the turnpike road. It is conceded by both parties that appellee owns a pass way, 16 feet wide, over the land of appellant, to the road. Appellee brought this action seeking to enjoin appellant from obstructing the pass way, which he alleged appellant had done, and was then doing, by building a straight rail fence too close to the pass way; that is appellee charges that this straight rail fence was built within less than eight feet from the center line of the pass way, and was therefore an obstruction. The fact of the pass way belonging to appellee, and that the fence had been built within less than eight feet from the center line of an old traveled way, is not denied; but appellant claims that the pass way was a straight way, and that the old traveled road was not in the center, but, being crooked, approached nearer to either side, in places. Appellant alleges that he left open a pass way full 16 feet wide, but straight, and this is the pass way appellee is entitled to, and denied the obstruction of the way. There is no real dispute as to any fact, except as to the exact location of the pass way over appellant's land. The court below, on hearing, adjudged that the old traveled way, as shown on the ground, was the pass way, and that the fence had been built within less than eight feet of the center line of this old traveled way, and to that extent was an obstruction, and should be removed; and appellant was enjoined from again obstructing same. From that judgment this appeal is prosecuted.

The record shows that appellee, Weddle, bought his tract of land in March, 1887, from Sarah E. Fields; and in that deed is conveyed, "And also a pass way across the lands of said Alex McCord, where a road now runs, 16 feet wide, in common with said McCord." Appellant purchased his land in May 1889, from W. J. Rees, who bought of Alex McCord; the deed to appellant reciting, "It is also agreed and understood between said parties that there is a...