Hunt v. Kemper

• Decision Date: 24 November 1888
• Parties: HUNT v. KEMPER.
• Court: Kentucky Court of Appeals

9 S.W. 803

HUNT v. KEMPER.

Court of Appeals of Kentucky.

November 24, 1888

Appeal from circuit court, Owen county; J. J. ORR, Special Judge.

Action by William R. Kemper against James W. Hunt to enjoin the obstruction of a right of way and for damages. Jury trial on the latter question, and verdict and judgment for plaintiff. Plaintiff then amended the petition, setting up the verdict and judgment, and the cause was transferred to the equity side of the court, and defendant was enjoined; whereupon he appeals.

Thos R. Gordon, for appellant.

W Montfort, for appellee.

BENNETT J.

The appellee contended that he was entitled to a passway at a specified place on the appellant's land, which passway had been established and continued at said place for more than 20 years; that he was entitled to said passway under and by virtue of grants from his immediate and remote vendors, who owned the tracts of land now owned by himself and the appellant; that he purchased the land now owned by him before the appellant purchased his; that his vendor in the deed of conveyance granted him the right of way on the land now owned by the appellant, which passway was then established and in use at a certain place on the land; that thereafter, when the appellant bought the land now owned by him, (appellant,) from his, the appellee's, remote vendor, or his assignee, who had previously granted said right of way, as it was then and is now located, to his immediate vendor, it was understood and agreed by the appellant that the appellee's right of way on said land existed as it was then located; that said right of way on said land, as it was then located, had existed, and had been continuously used and enjoyed at said place as an exclusive right, for more than 20 years; that the appellant had obstructed his right of way at said place, and would continue to obstruct it, unless enjoined by the court. The appellee asked for damages for past obstruction, and that the appellant be enjoined from obstructing his right of way in the future. The appellant put in issue the appellee's allegations, except the fact that he was entitled to a passway on his land at some convenient place, which he, the appellant, had the right to fix, change, or alter, provided such change did not materially inconvenience the appellee that he had made such change, to which the appellant agreed which change did not inconvenience the appellee. These...