Mitchell v. Pratt

• Decision Date: 30 October 1917
• Citation: 197 S.W. 961,177 Ky. 438
• Parties: MITCHELL v. PRATT ET AL.
• Court: Kentucky Court of Appeals

197 S.W. 961

177 Ky. 438

MITCHELL v. PRATT ET AL.

Court of Appeals of Kentucky.

October 30, 1917

Appeal from Circuit Court, Greenup County.

Suit by Charles Mitchell against John Pratt and others. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

H. R Dysaro, of Ashland, and J. B. Bennett, of Greenup, for appellant.

J. B Wilhoit and W. E. Wilhoit, both of Ashland, for appellees.

THOMAS J.

This is a passway suit wherein appellant (plaintiff below) is seeking to establish his right to a passway over and across the land of the appellees (defendants below), the farm of appellant joining that of the appellees on the north. Grounds for the claim to the easement right, as set up by plaintiff in his pleading as amended, are: (1) That he has acquired the right by prescription growing out of the fact that he and his vendors have used the passway as a matter of right and adversely for a period of more than 15 years, giving him a title by prescription; and (2) that his farm is a part of a larger one once owned by Nelson Pratt, and which was divided between his six heirs and his surviving widow after his death; that David Pierce, after the division of the Nelson Pratt lands, acquired some of the interest of the heirs and also the dower interest of Nelson Pratt's widow, which was 43 acres on the south edge of the Nelson Pratt farm across which runs the passway in question; and that David Pierce continued to use the passway across the dower interest in connection with the other portions of the Nelson Pratt farm which he had purchased from the latter's heirs, and that under the doctrine of the cases of Muir v. Cox, 110 Ky. 564, 62 S.W. 723, 23 Ky. Law Rep. 6, and Stone v. Burkhead, 160 Ky. 47, 169 S.W. 489, he is entitled to have the passway remain open as appurtenant to his premises. The answer as amended put in issue all of the allegations of the petition and its amendments, and upon trial the court dismissed plaintiff's petition, and to reverse the judgment he prosecutes this appeal.

The facts as found by the chancellor, and which we think are abundantly sustained by the evidence, are that Nelson Pratt, who owned a farm in Greenup county containing 240 acres, of which all of the lands involved in this suit are a part, died in 1855. There was allotted after his death to his widow 43 acres in the southern part of that farm with a public road running south of it, and also one bordering on its western end. The remaining portion of the farm was divided between his six children. After this, David Pierce bought from some of the heirs the shares allotted to them, and also bought the widow's dower, the fee to which was not divided until the widow's death in 1903; Pierce having died in 1899. We do not find sufficient evidence from the proof to establish the fact of any particularly defined passway across the portion of the farm allotted to the widow during the lifetime of Nelson Pratt. If there was any at all used by him it was for his own personal convenience, and when, in all probability, it was necessary to get from the public road to his residence, but which necessity has since been removed by the opening of a public road on the western line of the farm, which latter road was open during the lifetime of David Pierce, and has been since his death.

After David Pierce acquired the dower interest of Mrs. Pratt he used the passway across it from the road on the south to his premises lying just north of the dower interest, a part of which is the land now owned by plaintiff. Some 30 or more years ago there was a sawmill a short distance north of the Nelson Pratt farm, and a few people would use the passway across what is now the dower interest in going to that mill, but since the mill has ceased to exist, which has been for at least 25 or 30 years, there does not seem to have been any passway leading north from the Nelson Pratt farm, but if any it is rarely used and cannot in any sense be considered as used under a claim of right. Since the mill has ceased to be operated, the use of the passway across the dower interest has been confined almost exclusively to David Pierce and those who might have business with him, or those living upon his premises. From the time of the laying off of the dower interest, and while David Pierce owned it and used the passway across it, there have been gates or drawbars erected at either end, which were constructed and maintained by the owners of the dower interest and not by any member of the public claiming an interest in the passway. Upon at least three occasions since the gates have been maintained they have been locked, and remained so for some time. At such times the plaintiff and those residing upon the Nelson Pratt farm north of the dower interest would travel west to the public road on the western boundary of the Nelson Pratt farm. The plaintiff has owned his land for something like 8 years or more, and when the gates were locked by the defendants the last time he made a proposition to buy the right to travel over the passway in question, and offered therefor the sum of $50, which was refused.

Since the death of Nelson Pratt's widow the dower interest has been divided between those who owned the fee-simple title, and all of it was afterwards acquired by John Pratt, the father of defendants and one of the heirs of Nelson Pratt, and from whom the defendants inherited the entire 43 acres included in the dower. In the division of the dower interest there was reserved the passway, but this was done for the benefit of each owner among whom that division was made, and not for the benefit of others owning no interest in the dower tract.

In disposing of plaintiff's first contention that he is entitled to the passway by prescriptive use, the fact of plaintiff's premises being a part of a once larger farm over which the passway ran cannot be considered, as his right to the passway under a prescriptive use is acquired independent of the former condition and use of the farm of which his land is a part. Easements in the nature of passways may be acquired either by grant or prescription. The former is where there is a regularly executed agreement by which the right to the easement is created, and the latter is based on the presumption of a grant arising from continuous use for such a length of time as to presume the existence of the grant, which, in our state, is 15 years. But the character of use for that or any other length of time by the one claiming the passway must be under a claim of right, and not under permission given by the owner of the servient estate. After the use has been enjoyed for as much as 15 years it will be presumed to have been exercised under a claim of right, and the burden is upon the owner of the land over which the passway runs to show to the contrary. Hall v. McLeod, 2 Metc. 98, 74 Am. Dec. 400; Bowman v. Wickliffe, 15 B. Mon. 84; Smith v. Pennington, 122 Ky. 355, 91 S.W. 730, 28 Ky. Law Rep....