O'Daniel v. O'Daniel

• Decision Date: 29 January 1889
• Citation: 88 Ky. 185,10 S.W. 638
• Parties: O'Daniel v. O'Daniel.
• Court: Kentucky Court of Appeals

10 S.W. 638

88 Ky. 185

O'Daniel v. O'Daniel.

Court of Appeals of Kentucky.

January 29, 1889

Appeal from circuit court, Marion county; W. E. RUSSELL, Judge.

Bill in equity by Sim O'Daniel against H. F. O'Daniel, to compel defendant to remove certain obstructions placed by him on a private passway through his land, which plaintiff averred he was entitled to use. Judgment for defendant, and plaintiff appeals.

Samuel Avritt, for appellant.

J R. Thomas and Lewis Edelen, for appellee.

PRYOR J.

This controversy between the appellant and the appellee arises from the use by the appellant, and those under whom he claims, of a private passway; the appellant alleging that its use has been obstructed by the appellee by placing logs and constructing water-gaps across the way, that prevent travel upon it. The chancellor is asked to have the obstruction removed that the appellant may exercise his right of passage over it. It is alleged that this passway has been used by the public and by the owners of the farm upon which appellant resides, under a claim of right, for more than half a century; that the use has been constant and continued by the vendors of the appellant and the appellant during this entire period, and is the only way from the farm of the plaintiff to the public high way and turnpikes leading to his county-seat that this private way is appurtenant to his farm, and was at no time obstructed until the wrongful act of the defendant complained of, which occurred shortly before the bringing of this suit. The appellee admits the use, but insists that it was only permissive; that the passway used was up Hardin's creek, and, in building fences on either side of the creek, the owners of the land could not erect them near the water's edge on account of high water, and this left a space of 50 to 100 yards between the fences on each side and this space has been used by the public for many years, not under a claim of right, but by mere permission, the road being changed from time to time in the space mentioned by the change in the channel of the creek, or by reason of high water. It is further alleged that the plaintiff (appellant) is estopped from asserting any right, as he applied to the county court of Marion to condemn this route as a private passway, and was defeated; that his vendors, who lived on the land, and from whom he derived title, had caused other passways to be closed up that were appurtenant to the premises, and, having done so, the appellant, having had possession of this land for a period of less than 15 years, cannot now assert his claim; that he advised the vendor of the appellee to close up the passway, and stood by when the water-gaps were made, without making any objection.

A man by the name of Beauchamp owned the land of which both tracts owned by the appellee and appellant are composed; and when he owned it which was in the year 1820, this passway was used by the public and by himself as a passway to the county-seat. Mills, Hayden, and Thompson, who were nearly 86 years of age when they testified, say that this way in dispute was located in or near the branch when they were boys, and the land fenced on either side; that it was used as a passway from this land, and by the neighborhood, before Marion county was formed. Beauchamp sold this land in the year 1820 to William Russell and William Mudd, Russell purchasing the one farm, and Mudd the other. The two farms adjoin and border on...