Reed v. Flynn

• Decision Date: 02 December 1924
• Citation: 205 Ky. 783,266 S.W. 644
• Parties: REED v. FLYNN.
• Court: Kentucky Court of Appeals

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 countycourt 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 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 May, 1920, he erected the middle gate again.The defendant refused to close it or allow it to remain closed.He prayed an injunction requiring the defendant to close the middle gate and allow it to remain closed.An answer was filed controverting the allegations of the petition.A temporary injunction was refused, and on final hearing the plaintiff's petition was dismissed.He appeals.

While the evidence is conflicting, the great weight of the evidence shows that for many years after the contract was made the middle gate in question existed; that it was built by Michael Flynn at Brown's request, and a cross-fence was run across the field so as to cut it into two fields.The passway is about 1,250 feet long; there is no dispute about the gates at either end.The field contains 17 1/2 acres.When Reed bought the place, the cross-fence was in a bad condition, and he did not then need the cross-fence for his farming operations, so he took the fence away, and the gate was...