Gatewood v. Cooper

• Decision Date: 16 January 1897
• Citation: 38 S.W. 690
• Parties: GATEWOOD v. COOPER.
• Court: Kentucky Court of Appeals

38 S.W. 690

GATEWOOD v. COOPER.

Court of Appeals of Kentucky.

January 16, 1897

Appeal from circuit court, Clark county.

"Not to be officially reported."

Action by Jennie L. Gatewood to restrain R. F. Cooper from trespassing on plaintiff's land, and for damages. From a judgment for defendant on his cross petition, enjoining plaintiff from obstructing a public passway, plaintiff appeals. Affirmed.

J. M Benton and L. H. Bush, for appellant.

Leland & Hathway, for appellee.

BURNAM J.

The appellant instituted her suit in the Clark circuit court alleging that she was the owner and was in the possession of a tract of 90 1/2 acres situated on the waters of Howard's creek, in said county; that there was a passway through said land, which followed the course of Duncan branch, which the defendant, Cooper, had the right to travel but that said defendant, instead of traveling over said passway, along the proper course of same, had gone out of same, and had trespassed upon the bottom lands of plaintiff by passing over same with his horses and wagons and teams that he had broken down her fences around her said bottom and threatened that he would cut and take away her fencing around said bottom; and that he would continue to do so unless restrained by the court,-and she asked for damages against defendant, and for an injunction restraining him from passing over said land, or from interfering with her fences around said bottom. The appellee, in his answer filed herein, denies that he passed over the said land of appellant unlawfully. He claims, in substance, that for more than 24 years there has been a public passway over the lands of appellant along the route taken by him; that the passway was over a well-defined roadbed that had been continuously used by him and the public as a matter of right for more than 24 years; that his father, W. C. Cooper, had opened the way, and taken the passway out of the branch at that date, and that such changes had been acquiesced in by the public all that time, as they were given a better road; and that its use had been uninterrupted and continuous,-and charges appellant with wrongfully obstructing said passway, by plowing up said passway and erecting fences across same, and asks damages on cross petition, and for an injunction restraining appellant from future acts of obstruction of said passway. On the issues raised by the pleadings a large number of witnesses were...