Flener v. Lawrence

• Decision Date: 09 March 1920
• Citation: 220 S.W. 1041,187 Ky. 384
• Parties: FLENER v. LAWRENCE ET AL.
• Court: Kentucky Court of Appeals

220 S.W. 1041

187 Ky. 384

FLENER v. LAWRENCE ET AL.

Court of Appeals of Kentucky.

March 9, 1920

Rehearing Denied May 25, 1920.

Appeal from Circuit Court, Butler County.

Action by Warren Flener against Grover Lawrence and others. From judgment dismissing the petition plaintiff appeals. Affirmed.

N. T Howard and G. V. Willis, both of Morgantown, for appellant.

W. A Helm and A. Thatcher, both of Morgantown, for appellees.

(Image Omitted)

HURT J.

The above map will, to some extent, illustrate the controversy between Warren Flener, appellant, and Grover Lawrence appellee, arising from a contention by the appellant that he has an easement in the way of a passway over the lands of the appellee. It is not pretended that the above is a correct map of the lands, roads, and other objects referred to in the testimony, since, while two maps are referred to in the evidence, it was not pretended that either of them was a true representation of the objects referred to nor of their relations to each other; neither of them being founded upon a survey or measurements, but were drawn as the picture which certain persons entertained of the relations of the objects to each other. The two parallel lines, between which are the words "West" and "East," represent the public highway between Morgantown and Brooklyn, which was established 10 or 12 years before the institution of this action, but along the general course of which a passway used by the public generally formerly ran; at least there existed a public passway in that direction with which the other roads upon the map formerly connected or led to, and upon which the residents upon the lands mentioned in the controversy formerly traveled in going to the county seat, to church, or upon other business in either the direction of Morgantown or Brooklyn. The points indicated by the letters A, B, J, O, and N were the dwellings of A. J. Flener, the appellee Grover Lawrence, the site of a former schoolhouse, a dwelling upon the farm owned by appellant, and another old dwelling upon his lands, respectively. The lines indicated by the letters M to L, L to K, K to G, and G to M, are the boundary lines of the lands of appellee Lawrence. The line L, P, K, R is the northern boundary line of the lands owned by appellant, Flener. Between 40 and 50 years ago A. J. Flener, who resided at A, owned a large tract of land of more than 1,000 acres, and the lands now owned by appellant and appellees, were a portion of same. At that time A. J. Flener conveyed to his son Virgil Flener the farm upon which the dwelling at O is situated. Virgil Flener occupied the dwelling at O for a good many years, and the appellant is a remote vendee of Virgil Flener. The lands occupied by appellee Lawrence were conveyed by A. J. Flener to another son, whose daughter is now the wife of appellee and a joint owner with her husband. When A. J. Flener conveyed the farm to Virgil Flener, upon which the dwelling at O is situated, there was no outlet from this farm toward the north, nor in the direction of Morgantown or Brooklyn, and the deed made to Virgil Flener did not make any provision for a right of way over the remaining lands of A. J. Flener, but for several years Virgil Flener, while residing at O, made use of a way which is indicated by the letters O, L, and C as an outlet from his farm. About 34 years before the commencement of this action, a schoolhouse was erected at J, and a road was opened, by private agreement, from O to H, as a means of enabling Virgil Flener's children, and probably others, to attend school at that place, but it has been used since that time by the occupants of the lands at O for ingress and egress for any and all purposes of travel. A small portion of this road is upon the farm occupied by Lawrence, but the greater portion is upon the lands of Chinnamon Flener. Previous to the opening of the road from O to H, A. J. Flener desired to discontinue the road from O by the way of L to C, and to inclose the land within the lines D to V, V to E, and E to D, which was then an uninclosed, worn-out field, and he and Virgil Flener made an arrangement which resulted in the discontinuance of the road from O to L and to C and the opening of a way over the lands of A. J. Flener from P to E. A. J. Flener inclosed the old field, lying between the lines V to E and V to D, and Virgil Flener, with his help, opened a way on the outside of the inclosure from P to E, by cutting out the trees which obstructed the way. The road from P to E, at the time it was opened, was through uninclosed lands, and so remained until within a year or two before the commencement of this action, when the appellees, desiring to improve the lands to the eastward of the line P to E, cleared the portion of the lands embraced by the lines from V to E, E to V, and erected a fence from V to F. At the same time he placed gates over the road at V and at E. respectively. The appellant brought this action, alleging that he, as the owner of the lands which Virgil Flener owned, has an easement over the lands of appellees from P to E, which authorized him to travel over same from his lands to the public highway, and that appellees have obstructed same by felling trees in same and placing gates across it, and prayed for a judgment requiring the appellees to remove the obstruction from the road, including the gates. The appellees denied the existence of the easement, and alleged that appellant had an adequate road from his lands to the public highway at H, and for that reason had no occasion to use the roadway claimed by him. The court by its judgment, denied the appellant the relief sought and ordered the petition to be dismissed, and from that judgment he has appealed.

(a) From the above statement of the salient facts upon which the controversy rests it is apparent that, if the appellant has an easement in the way of a passway over the lands of appellees from P to E, and as an appurtenant to the farm he now owns and which was formerly owned by Virgil Flener, it arises by prescription and not otherwise. Under the facts, the way from the dwelling at O to C by the way of L might be considered to have been a way of necessity which did not arise from the presumption of a grant, nor from an implied grant, by reason of the existence of the road over the lands of Virgil Flener's grantor at the time the lands at O were conveyed to him; but in any event, the way was established, and Virgil Flener was making use of it for an outlet from his premises over the lands of his grantor and with the acquiescence of his grantor. Virgil Flener surrendered the right to use this way to his grantor between 30 and 40 years before the beginning of this controversy, but he seems to have surrendered it in consideration of a parol grant from A. J. Flener, his grantor, of a right to a passway along the way from P to E, and with the assistance of his grantor cleared out the road from P to E and made it suitable for his necessary travel from his farm in that direction. An easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another for as much as 15 years. O'Daniel v. O'Daniel, 88 Ky. 185, 10 S.W. 638, 10 Ky. Law Rep. 760; Conyers v. Scott, 94 Ky. 123, 21 S.W. 530, 14 Ky. Law Rep. 784; Bright v. Dunn, 15 S.W. 7, 779, 12 Ky. Law Rep. 689; Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep. 388; Thomas v. Bertram, 4 Bush, 317; Hall v. McLeod, 2 Metc. 98, 74 Am. Dec. 400; Bowman v. Wickliffe, 15 B. Mon. 84; Prewitt v. Graves, 35 S.W. 263, 18 Ky. Law Rep. 53; Ray. v. Nally, 89 S.W. 486, 28 Ky. Law Rep. 425; Bowen v. Cooper, 66 S.W. 601, 23 Ky. Law Rep. 2065; Chenault v. Gravitt, 85 S.W. 184, 27 Ky. Law Rep. 403; Anderson v. Southworth, 76 S.W. 391, 25 Ky. Law Rep. 776.

The road in controversy was used continuously and openly and visibly by Virgil Flener while he was the owner of appellant's land, and by each occupant of it since that time whenever they had occasion to do so. Virgil Flener and his son made repairs upon the road from time to time, and we find one of the occupants of the premises asserting a right in the presence of his neighbors to the use of the way since that...