Morgan County v. Goans

• Citation: 198 S.W. 69,138 Tenn. 381
• Parties: MORGAN COUNTY v. GOANS.
• Decision Date: 27 October 1917
• Court: Tennessee Supreme Court

198 S.W. 69

138 Tenn. 381

MORGAN COUNTY v. GOANS.

Supreme Court of Tennessee.

October 27, 1917

Certiorari to Court of Civil Appeals.

Suit by Martha Goans against Morgan County for damages for the obstruction of a right of way. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which reversed the judgment. Certiorari by plaintiff. Judgment of the Court of Civil Appeals is reversed, and that of the circuit court affirmed.

LANSDEN J.

This suit was brought by Mrs. Goans in the criminal and law court of Morgan county to recover damages for the obstruction of a right of way. The circuit judge, sitting without the intervention of a jury, awarded her $90 damages. From this judgment the county appealed to the Court of Civil Appeals in which court the judgment was reversed and the suit dismissed. The case is before us upon writs of certiorari. The facts are these:

Mrs Goans is the owner of a small tract of land abutting on a road which leads from the main Wartburg road through the lands of Duncan to her place. She has no other means of access to the main turnpike road than this way. There is evidence to show that the road leading by the premises of Mrs. Goans has been in existence more than 20 years. One witness says that he has known the road since 1884, and the public generally has traveled it continuously since that time as a matter of right. The road has not been worked by the county, so far as the evidence discloses. When trees would fall across the road, they would not be removed, but travelers along the road would go around the trees and then back into the old way. It was traveled by foot, horse, and vehicle travelers. There has been continuously a plainly marked road leading from the main Wartburg road through the premises of Duncan by the premises of Mrs. Goans. The obstruction complained of is that the county, in building a turnpike, reduced the grade of the main Wartburg road where the road in question comes into it, so as to completely obstruct the latter road. There is an embankment at the point of confluence 8 or 10 feet high. The Court of Appeals was of opinion that the evidence did not establish a prescriptive right of the public to the road, it holding that the public used the road by the permission of the landowner. However the circuit judge held to the contrary, and there is evidence to support his findings.

Twenty years' adverse user will establish a right of way either in the public or in private persons. L. & N. Ry. Co. v Hays, 11 Lea, 382, 47 Am. Rep. 291; Ferrell v. Ferrell, 1 Baxt. 329, and cases cited.

Therefore the question arising is...