Rupp v. Hickman

• Decision Date: 02 November 1937
• Parties: RUPP et al. v. HICKMAN et ux.
• Court: Kentucky Court of Appeals

112 S.W.2d 1023

271 Ky. 708

RUPP et al. v. HICKMAN et ux.

Court of Appeals of Kentucky

November 2, 1937

Rehearing Denied Feb. 25, 1938.

Appeal from Circuit Court, Jefferson County Chancery Branch, First Division.

Suit by William Rupp and others against R. Baylor Hickman and wife. From a judgment for defendants, plaintiffs appeal.

Affirmed with directions.

Woodward Dawson & Hobson, of Louisville, and Wilbur Fields, of Grayson, for appellants.

Lafon Allen and Wilson W. Wyatt, both of Louisville, for appellees.

THOMAS Justice.

The subject matter of this litigation-- filed in the Jefferson circuit court by appellants as plaintiffs below, against appellees as defendants below--concerns the extent of the rights of plaintiffs to the use of a passway traversing in whole or in part, from north to south, a tract of land containing in the neighborhood of 750 acres and running partly through the bluffs of the Ohio river east of the city of Louisville, Ky. The shape of the tract was and is narrow in width from east to west, and about 2 miles long from north to south, occupying the distance between what is known as the River road on the north, and the Brownsboro road on the south. The evidence is somewhat dim or hazy as to whether or not the route of the involved passway split the tract of land all of its distance so as to divide it into two parts of equal length, or whether it ran a part of its distance on the line separating the tract from the adjoining land on the west, and at some point before reaching the Brownsboro road turning east into the tract of land, thereby separating it over a portion of its south end. However, so far as the merits of the case are concerned it makes no difference which of the two ways the passway runs.

The land, before the Civil War between the states, was owned by John S. Bates, who devised it to his son, Gerard Bates, and it was generally known and referred to as the "Glenview Farm." It was sold in 1868 to James C. and John B. McFerran--the first of whom later became the sole owner. Near the midway point from north to south and just east of the passway, was the old residence of the first owner of the entire farm which was a commodious brick structure and is referred to in this record as the "Big House." James C. McFerran, after he became sole owner of the farm, sold it to a man by the name of Green and he later sold it to a Mr. Roach, which was in 1899, and the amount of land then conveyed to Roach, after deducting parcels and portions theretofore sold by prior owners to others for suburban residence sites, was 560 acres. Roach thereafter sold other parcels from the acreage he bought from Green, and in 1906 he sold the remaining 350 acres to the Glenview Land Company, a corporation organized for the purpose of forming a country club on the acreage bought by it, but which enterprise failed. The owner, Glenview Land Company, then concluded to parcel up its land into platted lots or tracts, suitable for roomy suburban residences, and to offer them for sale at public auction, which it did, the sale being set for October 28, 1907, and to be held on the premises. But on that day bidders were few and offered prices were low, both of which combined caused the Glenview Land Company to abandon that project, and it then began to sell at private sale small tracts and parcels of its land, disregardful of the plat it had made for its futile auction sale.

In the meantime there had been established along the eastern line of the tract of land a public road known as Lime Kiln road, running practically parallel with and east of the passway referred to, and from Brownsboro road on the south to the river road on the north. On February 24, 1908, the Glenview Land Company sold and conveyed to Jacob Rupp, the ancestor of plaintiffs--and through whom they obtained their title as his heirs--81.42 acres located near the south end of the entire tract, and between the passway on the west and Lime Kiln road on the east. Considerably prior to that purchase by plaintiffs' ancestor, other persons had acquired parcels of the farm from some of the prior owners, some of which were partly or entirely on the west side of the passway and extending south from the north line of the tract conveyed to Rupp. Some time during the next year (1909) the defendant Baylor Hickman purchased a parcel of land from the Glenview Land Company from what remained after it sold to Jacob Rupp the tract bought by him the previous year. Hickman soon began to negotiate for and later acquired other tracts of land adjoining the one he purchased from the Glenview Land Company, the vendors in which conveyances were purchasers from prior owners, and which after acquired tracts were either never owned by the Glenview Land Company, or had been conveyed by it prior to the Rupp sale.

The involved passway, which now bears the distinguished name of "Glenview Avenue," appears to have had its origin in a sort of bridle path which the more or less limited number of settlers in that and contiguous communities started by riding across the original Bates tract between the River road and the Brownsboro road. It later became a country driveway but was never made by any court proceedings a public road. As each purchaser of residential sites acquired their respective titles (beginning on or next to the River road on the north), they improved the passway from the River road out to the south line of their premises, and which was repeated by other purchasers of parcels towards the south end of the tract. It thus became a hard-surfaced road to the extent of such periodically lengthened improvements. Hickman finally acquired a consolidated tract of something near 140 acres, including the old Bates residence, known, as we have stated, as the "Big House," but the title to all of the land purchased by him was taken in the name of his wife, Stannye O. Hickman, the other defendant herein. Since the action was filed she has died, but proper revivor orders were taken. The solidified entire tract of land finally acquired by Hickman on both sides of Glenview avenue was somewhat irregular in shape. Its north boundary east of the avenue ran to a point known in the record as "Price's Corner," while its north boundary west of the avenue was some distance south from Price's Corner and is known in the record as "Ballard's Corner." The north gate in controversy here was erected by Hickman across the avenue at Ballard's Corner while the south gate was erected some distance to the south on Hickman's south line. A portion of the avenue, from the beginning, traversed what is now the lawn surrounding the Big House and other lawns connected with other residences composing a part of the present Hickman holdings.

About six years before the filing of this action by the plaintiffs as the Rupp heirs (and which was on April 30, 1935), Mr. Hickman constructed or repaired a gate across the avenue at Ballard's Corner, and a short while before the filing of the action he erected a gate where the avenue leaves his south line; and it is known in this record as the "south gate," whilst the first one mentioned is known as the "north gate." Plaintiffs sought by their petition a mandatory injunction against defendants to require them to remove the gates that had been so erected, and a perpetual prohibitory injunction against their right to erect or maintain them in the future. Their grounds for the relief they sought were, of course, based upon the contention that they possessed the right as owners of their tracts of land, to an unencumbered easement of travel over the avenue where the gates were constructed, and that their maintenance was an invasion of such alleged right. They based their ownership of the right contended for upon three grounds: (1) A covenant contained in the deed executed to Jacob Rupp, their ancestor, by the Glenview Land Company; (2) an alleged prescriptive right in the public to the unencumbered use of the...