Conyers v. Scott

• Decision Date: 25 February 1893
• Citation: 21 S.W. 530,94 Ky. 123
• Parties: CONYERS v. SCOTT.
• Court: Kentucky Court of Appeals

21 S.W. 530

94 Ky. 123

CONYERS v. SCOTT.

Court of Appeals of Kentucky.

February 25, 1893

Appeal from circuit court, Metcalf county.

To be officially reported.

Action by W. A. Conyers against J. W. Scott to compel the removal of a fence across a pass way, and to restrain its further obstruction. From a judgment in defendant's favor plaintiff appeals. Affirmed.

R. B Dohoney and James Garnett, for appellant.

J. W Compton, A. W. Scott, and Lewis McQuown, for appellee.

LEWIS J.

Appellant brought this action for a judgment compelling appellee to remove fences recently built across a pass way, and enjoining him from thereafter obstructing it. It appears that appellee owns and occupies a tract of land, the north and south lines of which are parallel; the former, for about half its length bordering on a public road; the latter being the north boundary of a tract of land appellant owns and resides on. The pass way in question extends northward, though not in a straight line, to the public road, dividing the land of appellee in two about equal parts. Appellant owns and cultivates another tract, north of, and bounding on, the public road mentioned, to reach which, from his home place, the pass way is the nearest and most direct route. He has no outlet at all from his residence, except on lands of others, though he might have a way to a public road by going a greater distance upon his own land, and less upon land of another, than in the case of the pass way in dispute. It does not appear the lands of the two parties ever belonged to the same owner. Consequently, appellant does not claim the right of way as a necessary incident of the grant of the land by his vendor. Nor does he contend the easement exists in virtue of an express contract. But he bases his claim upon uninterrupted use and enjoyment by himself and his vendors so long as to establish his right to the pass way.

The enjoyment of an incorporeal hereditament for as much as 15 years creates a presumption of legal title. But in such case the time of enjoyment is used merely as evidence to raise the presumption of a grant; and the manner of the enjoyment whether by mere favor, or under a claim of right, may be used as evidence to rebut the presumption. Hall v. McLeod, 2 Metc. (Ky.) 98. "To create the presumption of the grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for benefit of the claimant, or that its use was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it, without regard to the wishes of the owner of the land. The use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege revocable at the pleasure of the owners of the soil." Bowman v. Wickliffe, 15 B. Mon. 98. The evidence shows that for many years - according to some of the witnesses, as much as 40 or 50-there were several pass ways over the land of appellee, used by the neighbors generally; at least two...