Reed v. Flynn

CourtCourt of Appeals of Kentucky
Writing for the CourtHOBSON, C.
Citation205 Ky. 783,266 S.W. 644
Decision Date02 December 1924
PartiesREED v. FLYNN.

266 S.W. 644

205 Ky. 783

REED
v.
FLYNN.

Court of Appeals of Kentucky.

December 2, 1924


Appeal from Circuit Court, Grant County.

Suit by A. G. Reed against Carl K. Flynn. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

L. M. Ackman, of Williamstown, for appellant.

C. C. Adams, of Williamstown, for appellee.

HOBSON, C.

In the year 1868 there was pending in the Grant county court a proceeding instituted by Michael Flynn v. J. H. Brown, in which Flynn sought to establish a passway from his land to the pike over Brown's land. In settlement of this suit a written contract was made on September 25, 1868, signed by them both, in which, after setting out the route of the passway as laid out by the viewers, these words were added:

"Now therefore, know all men by these presents that said suit is settled and compromised by and between the parties, the said Flynn is to pay all costs that have accrued in said suit [266 S.W. 645] except the attorney's fees of Brown, and the said Brown for and in consideration of the sum of one hundred dollars in hand, the receipt of which is hereby acknowledged, have this day and by these presents do hereby establish unto the said Michael Flynn and his heirs and assigns a right of way in and to and over said described land which is to continue unto the said Flynn his heirs and assigns without interruption from the said Brown and his heirs and assigns so long as he may use said lands as a private passway and to all intents and purposes this passway is hereby as lawfully established as if done by a proper order of said court but not to continue any longer than the said Flynn or his heirs and assigns use the same as a private passway and whenever the said Flynn heirs or assigns abandon and cease to use same as such then it reverts back to the said Brown and he has the right under this contract of compromise to close same.

The said Flynn as a part of said consideration for said passway agrees and binds himself to erect at his own cost all gates that may be necessary to the complete protection of the land of said Brown and to keep them in good and substantial repair so long as he may use said land before described as a private passway, that said land is not to be fenced in thereby making a lane, but as a part of this contract gates are to be erected instead of a fence. The said Flynn, his heirs and assigns, are to put in good and substantial posts on which to erect said gates and said gates are to be of good and sufficient size. But it is expressly understood that in no event or case does the legal title to said land pass from the said Brown to said Flynn but only the right of way uninterrupted by the said Brown, his heirs or assigns."

A. G. Reed now owns the Brown farm, Carl K. Flynn the Flynn farm; Reed holding under Brown, and Flynn under his grandfather Michael Flynn. On May 20, 1921, Reed brought this action against Flynn, alleging these facts. He became owner of the Brown farm in 1900, and then removed a gate that was at that time standing across the pathway and had so stood from the time that the contract was entered into. This gate stood between gates standing at either end of the passway, making three gates on it. This gate was necessary for the protection of his land, and in...

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9 practice notes
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • 27 Febrero 1928
    ...Miss. 547] signals were given, and especially so where the witness was paying no attention to ascertain if any were given. 100 P. 1016; 266 S.W. 644. The failure on the part of the plaintiff to call the witness Mike Buford, who was evidently friendly to plaintiff, is a circumstance from whi......
  • Rupp v. Hickman
    • United States
    • United States State Supreme Court (Kentucky)
    • 12 Noviembre 1937
    ...Yates, 200 Ky. 530, 255 S.W. 102; Raisor v. Lyons, 172 Ky. 314, 189 S.W. 234; Hunt v. Sutton, 188 Ky. 361, 222 S.W. 84, and Reed v. Flynn, 205 Ky. 783, 266 S.W. 644. Numerous other cases since the rendition of the ones cited have approved and followed the same principles, but they are too w......
  • Rupp v. Hickman
    • United States
    • Court of Appeals of Kentucky
    • 2 Noviembre 1937
    ...Yates, 200 Ky. 530, 255 S.W. 102; Raisor v. Lyons, 172 Ky. 314, 189 S.W. 234; Hunt v. Sutton, 188 Ky. 361, 222 S.W. 84, and Reed v. Flynn, 205 Ky. 783, 266 S.W. 644. Numerous other cases since the rendition of the ones cited have approved and followed the same principles, but they are too w......
  • Herndon v. McKinley
    • United States
    • Court of Appeals of Kentucky
    • 24 Agosto 1979
    ...enjoyment of the passway. The "termini rule" has been amplified and continued by many subsequent cases. McKinley cites Reed v. Flynn, 205 Ky. 783, 266 S.W. 644 (1924), for the proposition that when a contract is silent as to gates, the erection of gates across a passway at any place other t......
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9 cases
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • 27 Febrero 1928
    ...Miss. 547] signals were given, and especially so where the witness was paying no attention to ascertain if any were given. 100 P. 1016; 266 S.W. 644. The failure on the part of the plaintiff to call the witness Mike Buford, who was evidently friendly to plaintiff, is a circumstance from whi......
  • Rupp v. Hickman
    • United States
    • United States State Supreme Court (Kentucky)
    • 12 Noviembre 1937
    ...Yates, 200 Ky. 530, 255 S.W. 102; Raisor v. Lyons, 172 Ky. 314, 189 S.W. 234; Hunt v. Sutton, 188 Ky. 361, 222 S.W. 84, and Reed v. Flynn, 205 Ky. 783, 266 S.W. 644. Numerous other cases since the rendition of the ones cited have approved and followed the same principles, but they are too w......
  • Rupp v. Hickman
    • United States
    • Court of Appeals of Kentucky
    • 2 Noviembre 1937
    ...Yates, 200 Ky. 530, 255 S.W. 102; Raisor v. Lyons, 172 Ky. 314, 189 S.W. 234; Hunt v. Sutton, 188 Ky. 361, 222 S.W. 84, and Reed v. Flynn, 205 Ky. 783, 266 S.W. 644. Numerous other cases since the rendition of the ones cited have approved and followed the same principles, but they are too w......
  • Herndon v. McKinley
    • United States
    • Court of Appeals of Kentucky
    • 24 Agosto 1979
    ...enjoyment of the passway. The "termini rule" has been amplified and continued by many subsequent cases. McKinley cites Reed v. Flynn, 205 Ky. 783, 266 S.W. 644 (1924), for the proposition that when a contract is silent as to gates, the erection of gates across a passway at any place other t......
  • Request a trial to view additional results

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