Champion v. Munday

• Decision Date: 11 January 1887
• Citation: 85 Ky. 31
• Parties: Champion v. Munday.
• Court: Kentucky Court of Appeals

Page 31

85 Ky. 31

Champion v. Munday.

Court of Appeals of Kentucky.

January 11, 1887.

APPEAL FROM MERCER CIRCUIT COURT.

THOMPSON & ROACH FOR APPELLANT.

O. S. POSTON & JACOBS AND BELL & WILSON FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

If A sells a tract of land to B which is surrounded by other land of A, then B is entitled to a passway out through such other land of A. So if A sell land surrounding other land belonging to him to which he can have access only over the granted premises, he, by implication, reserves a way over the same, although he has conveyed with covenant of warranty. It is a way of necessity.

This case, however, is not either of those stated. The appellee, Munday, prior to the sale by him to the appellant, Champion, of the forty-nine acre tract of land, could pass from his home tract to and over it, and thence by permission over the Graves land to the lane between the Newton and McGarvey land, and by it to the Lexington and Harrodsburg Turnpike. His home place of one hundred and twenty acres did not adjoin any public road. On April 15, 1881, he sold the forty-nine acres to Champion, the consideration being, as he says, two thousand dollars, and a passway from his home place through the adjoining home place of Champion, it to be the one also used by the latter, whose place also did not adjoin any public road, the outlet from it being along the west line of the forty-nine acre tract to the Graves land, and thence to the turnpike by the route above named. He says that he was also to have one-half of the wheat then on the land. The deed from Munday to Champion, dated April 15, 1881, recited the consideration as eighteen hundred dollars; but this does not prevent other or further consideration from being shown. (Davenport v. McCampbell, 17 B. M., 42; Gordon's Heirs v. Gordon, 1 Met., 287.) The parties agree that the money to be paid was two thousand dollars. The appellant in his pleadings denies that the appellee was to have a passway of any character, either personal to him and his family or one appurtenant to his home place, through the home place of the appellant. In his testimony, however, he substantially admits, and his able counsel appears to assume in the argument, that the appellee and his family were to have the right to pass through, but that the privilege was to be confined to them, and be a mere permissive passway. So that we may regard the question as being whether the contract was for a passway...