May v. Blackburn

• Decision Date: 06 February 1894
• Citation: 25 S.W. 112
• Parties: MAY et al. v. BLACKBURN.
• Court: Kentucky Court of Appeals

25 S.W. 112

MAY et al. v. BLACKBURN.

Court of Appeals of Kentucky.

February 6, 1894

Appeal from circuit court, Floyd county.

"Not to be officially reported."

Suit by B. C. May and another against John H. Blackburn to enjoin obstruction of a way. Judgment for defendant. Plaintiffs appeal. Reversed.

Jas Goble and Hugh Rodman, for appellants.

Kirk &amp Kirk, for appellee.

PRYOR J.

This case involves the right to the use of a passway over the land of the appellee. There is conflicting testimony as to the claim of right on the part of the public to this user, and while those only who owned the land over which the road runs testify as to the right being merely permissive, others living in the vicinity speak without any qualification of the user as a matter of right, for all purposes, by the public for from 19 to 36 years; that the use was continued and uninterrupted during the entire period. It is well settled that a permissive use of uninclosed or inclosed land by the owner will not vest in the public such a use as to deprive the owner of the right to stop up the passway and deny the right, but sometimes the character of the passway, as well as the constant use of it, evidences the manner of the claim by the public, and the owner's recognition of it. In such a mountainous country as we find in many parts of Floyd county the passway between the elevations on each side is the only mode of ingress and egress to the land of the owners, and especially with teams. Nature seems to have created those outlets to enable the owners to reach their mountain homes, and when you close them up there is no passway for teams on the mountain sides, and no means of reaching their navigable streams or places of business, except the pathway that is made by the small streams, with hills on either side. These appellants show a loss to them, with their logs in the ravine, and no mode of getting them out. They saw the wife, who is the real owner of the land, and obtained her consent, and for some reason the appellee (her husband) denied the privilege of passing over this land to the appellants, and yet permitted others to travel over it. This he had the right to do, if there was no such passway as gave the public the right to travel down this branch. As we have before stated, the testimony of those disinterested show a constant use for over 20 years, and in the division of this land between the heirs of McCoy this...