Hall v. McLeod
| Decision Date | 18 June 1859 |
| Citation | 59 Ky. 98 |
| Parties | Hall v. McLeod. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOURBON CIRCUIT COURT.
1. To enable a purchaser to claim a right of way through the lands of his vendor he must show that such a right is indispensably necessary to the enjoyment of the land which has been conveyed to him.
2. Where the proprietor of land has a passway through it for his own use the mere permissive use of it by other persons, even for half a century does not confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use, or discontinue it altogether, at his pleasure.
3. To create the presumption of a grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for the 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 owner of the soil. (15 B. Mon., 100.)
4. According to the principles of the common law a right to any incorporeal hereditament may be acquired by length of time. This mode of acquisition is denominated prescription, and is founded on uninterrupted use and enjoyment time out of mind or, in other words, for such a length of time that the memory of man runneth not to the contrary. Such an enjoyment of the use does not merely create a presumption of a right, but is conclusive evidence of its existence.
5. The enjoyment of an incorporeal hereditament for twenty years only furnishes a presumption of a legal title, which may be confirmed or repelled by the circumstances incident to its use and enjoyment. In such a case the time of enjoyment is used merely by way of evidence to raise the presumption of a grant; and the manner of the enjoyment, i. e., that it was by mere favor, and was not claimed and exercised as a right, may be used as evidence to rebut that presumption.
6. A specific execution of general promises by one to establish a passway over his land, where no specific contract was made by him with any person, can not be had.
7. A right of way in an interest in real estate, and a verbal contract that it shall be granted can not be enforced, not being obligatory under the statute of frauds.
8. Where a passway was opened for the benefit of the plaintiff and others, in pursuance of a verbal promise to that effect by the owner of the soil, the presumption is that it was used as a matter of right, and if such use had continued for twenty years, it would have been sufficient to have conferred an absolute right to the easement. But as it was suspended before the expiration of that period, no presumption of a grant can arise.
9. The doctrine is well established that a dedication of real estate to public use may be made by mere verbal declarations accompanied with such acts as are necessary for that purpose. But to make a valid dedication, an intention to appropriate the right to the general use of the public must exist. When the appropriation is for the use of particular persons only and made under circumstances which exclude the presumption that it was intended to be for public use, it will not amount to a dedication.
10. A private passway can not be created by dedication; nor can the establishment of a private passway be construed to be a dedication of it to public use.
11. Where a way is opened as a private passway, and that fact clearly appears, it can not be converted into a public highway by the mere use thereof, no matter how long that use may be continued.
12. A court of equity can interpose in behalf of a person whose right to the use of a passway, already in existence, has been obstructed; but it has no jurisdiction in a case where the establishment of a passway is claimed on the mere ground of necessity.
T. A Marshall, for appellant.
G. & R. T. Davis, on same side, cited 6 Pet., 429; 2 Ib., 566; 4 Paige, 510; 1 Rob., Va., 510; 3 B. Mon., 437; 8 B. Mon., 237; 9 Ib., 201; 6 Pet., 498; 2 Ashmead, 211.
Robinson & Johnson, for appellee.
T. P. Smith and Williams & Prall, on same side, cited 2 Mar., 503; 1 Littell, 80; 2 Ashmead, 211; U. S. Digest, Dedication, page 305, sec. 9; 15 B. Mon., 84.
The appellant, Hall, filed his petition in the circuit court, asserting a right to the use of a passway over part of the land now owned by the appellee, McLeod, from the mouth of Smith's Branch through a woodland pasture to the turnpike road leading from Paris to Lexington. He alleged that Jas. McDowell, the former owner of the land, had agreed to establish said passway, and did, in pursuance of his agreement, establish and dedicate it to the public use; and that it had been used as such for eight or ten years without interruption, until it was obstructed by the appellee, who had lately purchased the land through which it passed.
The right of the plaintiff to maintain an action for obstructing the passway is controverted, on the ground that he has no legal right of way to or from the mouth of Smith's Branch, the point at which the alleged passway commences, and consequently has not been injured by its obstruction.
The alleged establishment and dedication of such a passway is also positively denied by the appellee.
Unless the appellant has sustained an injury by the obstruction of the passway, he has no right to come into a court of equity to ask the aid of the chancellor to remove the obstruction. And if he be unable to use the passway if it were opened, he has certainly not been injured by its discontinuance. It becomes, therefore, material to inquire whether it could be lawfully used by him were it open and unobstructed.
He can only reach the mouth of Smith's Branch by passing through the land of McDowell. He claims a right to do this on two grounds. First. The land he owns and occupies originally constituted a part of the McDowell tract, and was sold and conveyed by McDowell to one Joseph Moore, from whom he derives his title. He therefore claims a right to pass through the land of the original vendor to the public road leading to the county seat of the county in which the land lies. Second. He also claims this right in consequence of the continued use and enjoyment of a passway, by himself and his neighbors, leading from the Bethlehem road to the road from Paris to Lexington, for a period of forty or fifty years.
1. To enable a purchaser to claim a right of way through the lands of his vendor, he must show that such a right is indispensably necessary to the enjoyment of the land which has been conveyed to him. If the land he has purchased be entirely surrounded by the lands of his vendor, the law, from the mere fact of the sale and conveyance of land so situated would imply a grant by the vendor to the vendee of a right of way through his land, to enable the latter to have ingress and egress to and from his land. The land, however, which McDowell sold to Moore lay on the outside boundary of the vendor's tract, and it does not appear that it was necessary for the purchaser to pass through any of the...
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