Holbrook v. Hammond

• Decision Date: 08 February 1946
• Citation: 192 S.W.2d 746,302 Ky. 10
• Parties: HOLBROOK et al. v. HAMMOND.
• Court: Kentucky Court of Appeals

192 S.W.2d 746

302 Ky. 10

HOLBROOK et al. v. HAMMOND.

Court of Appeals of Kentucky

February 8, 1946

Rehearing Denied March 22, 1946.

Appeal from Circuit Court, Owen County; Ward Yager, Judge.

Action by May Holbrook and another against Katie Hammond to enjoin interference with use of passway, wherein defendant counterclaimed and asked for an injunction against alleged trespass. Judgment for defendant, and plaintiffs appeal.

Reversed with directions.

L. M Ackman, of Williamstown, for appellants.

James L. Vallandingham, of Owenton, and Marion Rider, of Frankfort for appellee.

THOMAS Justice.

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On and prior to February 18, 1916, A. L. Hammond owned a rectangular shaped farm in Owen County, Ky. For a distance of about 2,000 feet along the west line of the farm ran a public road known as 'Pleasant Ridge and Mt. Carmel Road.' On the day indicated he conveyed 94 acres off the eastern portion of his tract to J. H. Howell and Ed Roland jointly. On March 1 1917, Howell and Roland conveyed the same 94 acres to appellants, Katie Hammond and husband, Charlie Hammond. Later the wife acquired the entire tract. In the deed to Howell and Roland the grantor, A. L. Hammond, also stipulated that '* * * A. twelve (12) ft. road is granted H. H. Howell and Ed Roland from the land herein conveyed over the land of A. L. Hammond, starting at an ash tree in the Roland line running up the ridge to the Pleasant Ridge and Mt. Carmel Dirt road running back to the land herein conveyed. This right of way is for the use and benefit from the land herein conveyed.'

That passway was for the purpose of furnishing an outlet to the vendees from their tract to the public road. The deed Howell and Roland executed to appellants in 1917 also expressly conveyed the 12-foot easement which A. L. Hammond had created across the remaining portion of his tract. On and prior to the date of the conveyance to Howell and Roland there was a fence running east and west about midway of the remnant of A L. Hammond's tract, after conveying the 94 acres to his vendees, and about midway of that fence was a gate. Soon after the conveyance to Howell and Roland another fence was built paralleling the old one just 12 feet from it, thereby laying off the conveyed easement which location all parties appear to have accepted and agreed to. In the building of the new fence a gate was made in it about opposite the gate in the old fence, thus affording A. L. Hammond a means whereby he could cross the passway from one portion of his tract to the other one. There is testimony in the case that Charlie Hammond, appellee's husband, assisted in the construction of that fence, as well as the gate as a part of it.

On March 10, 1920, A. L. Hammond and wife conveyed to the Holbrooks the balance of his entire tract consisting of about 88 acres, which was the servient estate to the 12-foot passway across it, following which the second fence mentioned was built. Sometime after the 94-acre tract was acquired by appellee and her husband they began to object to the Holbrooks using the passway for any purpose whatever, not even the right to cross it through the two gates mentioned in order to reach the different portions of their tract. They also objected to the Holbrooks traveling the passway longitudinally for any legitimate purpose of their own. Finally a warrant was obtained against the tenant of appellants who had used the passway for a legitimate purpose of the servient estate without interfering with the granted use of it by appellee. The record does not show what became of that alleged trespass prosecution.

The row and dispute over the right of appellants to use the passway for any legitimate purpose continued with appellee occasionally tearing out or nailing up the gate put into the new fence. The quarrel eventually resulted in appellants filing this action in the Owen circuit court against appellee, and in their petition they set out the facts as herein stated, and prayed for a perpetual injunction 'requiring the defendant herein, Katie Hammond, to abstain from all efforts or actions or threats against these plaintiffs or their agents, denying to the said plaintiffs the free and uninterrupted use of said two gates and the said twelve foot passway and from intimidating these plaintiffs and their employees in the use of said gates and passway in the usual and reasonable practices of good husbandry; for plaintiff's costs herein expended * * *'.

Defendant answered by denying the right of plaintiff (appellant here) to use the passway for any of the purposes stated, since they also alleged that in A. L. Hammond's deed to Howell and Roland (their vendors) conveyed an absolute fee simple title to the area of the 12-foot passway, and not merely an easement appurtenant to, and for the benefit of their land as the dominant estate. In another paragraph they counterclaimed and asked that plaintiffs, and appellants, be enjoined and restrained 'from trespassing upon, over, along or across said 12-foot passway, or from cutting, breaching or injuring the fences abutting same.' Considerable evidence was taken by both sides, and the court on final submission dismissed plaintiffs' petition, thereby denying the injunction sought by them. It then sustained defendant's and appellee's, prayer for an injunction restraining plaintiffs from doing any of the...