Potts v. Clark

• Decision Date: 15 May 1901
• Citation: 62 S.W. 884
• Parties: POTTS v. CLARK et al. [1]
• Court: Kentucky Court of Appeals

62 S.W. 884

POTTS v. CLARK et al. ^[1]

Court of Appeals of Kentucky.

May 15, 1901

Appeal from circuit court, Nicholas county.

"Not to be officially reported."

Action by Thomas M. Clark and others against Mary F. Potts for an injunction, Judgment for plaintiffs, and defendant appeals. Affirmed.

Winfield Buckler and Norvell & Robinson, for appellant.

John F Morgan, for appellees.

O'REAR J.

Appellees asked for an injunction to prevent appellant from interfering with their (appellees') right to use a certain passway over the land of appellant in Nicholas county. Judgment perpetuating the injunction asked for was entered. The proof discloses that the passway in controversy has been in use by the public for over 65 years. Appellant sought to defeat the claim of appellees upon the showing that at intervals during the last 20 years the owners of the servient estate had objected to some members of the public using the passway; had granted permission to others, on their request had obstructed the passway by felling of logs and placing in it of débris of various kinds, but which had been removed by some member of the public without the knowledge or consent of the owner. From these facts it is argued the use by the public was a permissive one, and therefore could not have become by prescription an adverse and absolute right.

Forty years of general use of a passway by the public raises a presumption that such use was claimed as a matter of right and under grant. O'Daniel v. O'Daniel, 88 Ky. 185, 10 S.W. 638. Therefore, before the interferences relied on by appellant as indicating her permission, the public appear to have acquired a right to the use of the passway, the equivalent of a grant from the owner of the fee duly executed, In such a case the subsequent interference by the owner of the servient estate would be similar to a trespass. Abortive attempts to stop a passway by erecting obstructions, which were removed by the public whenever it became necessary to use the passway, we have held ineffectual to interrupt such continued use and right. Wilkins v. Barnes, 1 Ky. Law Rep. 328. A case very similar to the one at bar was decided in accordance with appellees' claim here, and these views, reported in 4 Bush, 318 (Thomas v. Bertram, by Judge Robertson). See, also, Benedict v. Johnson (Ky.) 42 S.W. 335; Lisle v. Embry (Ky.) 42 S.W. 98. The public's right to the use of the passway having become...