Herndon v. McKinley

• Citation: 586 S.W.2d 294
• Parties: Eugene HERNDON, Appellant, v. Tom McKINLEY, Appellee.
• Decision Date: 24 August 1979
• Court: Court of Appeals of Kentucky

Page 294

586 S.W.2d 294

Eugene HERNDON, Appellant, v. Tom McKINLEY, Appellee.

Court of Appeals of Kentucky.

Aug. 24, 1979.

William A. Johnson, Sullivan & Johnson, Taylorsville, for appellant.

John D. Dale, Jr., Coots & Dale, Taylorsville, for appellee.

Before HOGGE, HOWERTON and VANCE, JJ.

HOWERTON, Judge.

Herndon initiated this action to enjoin McKinley from crossing his land, destroying his gates, and interfering with his farming operation. McKinley filed a counterclaim asserting a right-of-way by deed over Herndon's farm, and he claimed that the gates, chains, and locks interfered with his use of the passway. The Spencer Circuit Court entered a summary judgment dismissing Herndon's petition and enjoining him from erecting more than two gates on the passway, one at the property line between the parties, and one at the junction of the passway with highway 55.

Herndon argues that the 1886 deed did not extinguish his property rights in the 14-foot right-of-way, except for the specific grant in the deed. Herndon also contends that the dominant owner of a passway may not prevent the erection of gates by the servient owner when they are necessary to protect the servient owner's full use and enjoyment of the land. These propositions are basically true, but they will not change the result in this case.

The granting clause in the deed reads in part as follows: ". . . that a passway is granted and guaranteed . . . to the pike as said passway now runs . . . except the gate on the dividing line may be changed as agreed on . . . ." There is no longer an issue concerning the erection and maintenance of a gate on the property line between the parties and at the boundary adjoining the highway. The controversy on this appeal involves a third gate which has been erected across the passway inside the Herndon property.

Herndon did not plead, nor prove, that a third gate ever existed at any location. McKinley filed an uncontroverted affidavit stating that only two gates had existed since he purchased the dominant estate in 1971. The trial judge did inquire if a third gate had existed at any point for fifteen (15) years to establish a right by adverse possession. The judge was informed that such a gate had existed at one time, but at another location. Herndon offered no further proof of that fact.

There is no hard and fast rule governing if and when the owner of a servient estate may erect gates across a passway on his land. The manner of creation of the passway is one factor bearing upon the right to erect one or more gates. Generally speaking, different rules do apply to passways created by adverse use as opposed to a passway created by an express grant, reservation, or devise. Whitaker v. Yates, 200 Ky. 530, 255 S.W. 102 (1923).

We have an express grant in this case, but except for the notation that the gate on the dividing line may be changed by agreement, the instrument is in general terms with no specific stipulation as to gates. Maxwell v. McAtee, 48 Ky. (9 B. Mon.) 20 (1847), is considered to be the landmark case on easements of this nature. The case has been cited on numerous occasions. The original rule reads: "The grant of a passway in general terms, over a particular part of the grantor's land, does not imply a negation of his right to erect gates at the termini of the way in entering and leaving his land." The court reasoned that the mere grant of a right-of-way passes nothing more than its terms imply. Every right in the land not inconsistent with its use under the grant remains in the grantor, but the...