Maggard v. Breeding
| Decision Date | 19 May 1942 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Maggard et al. v. Breeding et al. |
Appeal from Letcher Circuit Court.
W.H. Lewis for appellants.
Stephen Combs, Jr., for appellees.
Before R. Monroe Fields, Judge.
Affirming.
The circuit court ordered the appellants, L.P. Maggard and Susan Maggard, to remove a fence across an old public road and enjoined them from again obstructing it. There was considerable evidence heard on the trial and the judge went to the country and viewed the situation, which is not very cleary described in the record. However, the essential facts upon which the judgment was rendered and this decision rests are brief.
Before 1920, J.P. Back owned a body of land on both sides of Sandlick Creek in and along which ran a county road. In that year proceedings were had in the Letcher County Court for the opening of a new road up the creek in which J.P. Back participated as a defendant. The new road substantially runs along the old road, in part on the same right of way. At the point involved in this suit, it was parallel with and several feet north of the old road. It has become State Highway No. 15 between Whitesburg and Hazard. Early in 1926, J.P. Back partitioned his land by deeds among his several children, one of whom is Mrs. Susan Maggard, and the children of his deceased daughter, Mrs. Hennie Adams. Each of the tracts, particularly the two involved, also extended across and was situated on both sides of the creek and the old and new roads. In 1940 Mrs. Adams' children, one of whom is Mrs. Nannie Breeding, appellee, partitioned that parcel among themselves. Mrs. Breeding bought the parcel of one of her sisters adjoining her land. It appears that in this division among the Adams children the part received and now owned by Mrs. Breeding runs down to the old road or perhaps in part beyond to the State Highway, but because of the creek and the steep embankments there is no direct or practical means of ingress or egress to and from the highway. Below this land is that owned by the appellants at which the old and new roads come together. Appellees and their predecessors, the Adamses as joint owners, have been going to and from their land for its cultivation and logging (there being no house on it) over the old road running through the Maggard tract. Appellants' evidence contradicts this use and indicates appellees have other access to the highway. The defendants enlarged their barnyard and built fences across the old road, which it has been adjudged they had no right to do. The contention of a right to the unobstructed use of the old road by the plaintiffs, now the appellees, is that it was never closed and is still a public way.
In many places the old road was destroyed in the construction of the new highway and the situation is much like that described in Waller v. Syck, 146 Ky. 181, 142 S.W. 229, in which it is held that when the location of a public road is merely changed for a part or all of its distance so that it may be more accessible for travel, there is a...
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