Salmon v. Martin

• Decision Date: 05 December 1913
• Citation: 160 S.W. 1058,156 Ky. 309
• Parties: SALMON et al. v. MARTIN et al.
• Court: Kentucky Court of Appeals

160 S.W. 1058

156 Ky. 309

SALMON et al. v. MARTIN et al.

Court of Appeals of Kentucky.

December 5, 1913

Appeal from Circuit Court, Daviess County.

Action by T. L. Martin and another against N.W. Salmon and another. From judgment for plaintiffs, defendants appeal, and plaintiffs attempted to cross-appeal. Affirmed.

Little & Slack, of Owensboro, for appellants.

C. W Wells and W. Foster Hayes, both of Owensboro, for appellees.

MILLER J.

This action was brought by Martin and Yeiser against Salmon and his tenant Tanner, to compel them to remove a fence which they had erected so as to obstruct a passway 36 feet wide and to recover $201 damages therefor. The court granted the relief asked, and required the defendants to leave an unobstructed passway 22 feet wide at its western end, and at least 20 feet wide at a point 500 feet east thereof. It however, dismissed plaintiffs' claim for damages. From that judgment all parties appeal; the plaintiffs appealing from so much of the judgment as restricts the passway to a width of 22 feet and dismisses their claim for damages.

1. The passway in question is about one mile in length, and extends from the Greenbrier and Utica road on the west, to the Greenbrier and Masonville road on the east. Beginning on the west, and on the south side of the passway, Salmon owns 100 acres, which fronts about 1,600 feet upon the passway; adjoining Salmon on the east, Brown owns 38 acres; then comes Yeiser's 65 acres, which is followed by Wilson Bennett's tract. Upon the north side of the passway Lee Bennett's tract lies on the west and opposite the Salmon tract, while Martin's 19-acre tract lies immediately east of Lee Bennett's tract, and is opposite the Brown tract and the Salmon tract. Salmon bought from the Allen heirs in 1904, while the appellees, Martin and Yeiser, acquired their respective tracts of land in 1910. As early as 1874, a fence was built by Allen along about one-half of the north line of the Allen tract, now owned by Salmon, and in about 1899 Allen built the remainder of the fence, carrying it to the northwest corner of the present Salmon tract. Before the fence was completed along the north line of the Allen tract in 1899, travelers would make a short cut of from 100 to 200 feet in length through the woods which covered the northwest portion of the Allen tract. This departure from the regular road or passway was caused sometimes by muddy roads, and at other times for mere convenience, since it was a shorter route to the road. As the fence was originally built, the passway at its western extremity was 36 feet wide; but in 1911 Salmon erected a barbed-wire fence 27 feet north of the original fence, thus leaving a passway of only 9 feet along the northern boundary of the old passway. This is the obstruction which the appellees sought to have removed by this suit.

The weight of the evidence shows that the road or passway has existed for 30 years or more, although all the fences upon either side of the road have not been built for so long a time. Bennett has lived in the neighborhood all of his life, and testifies that he assisted in building the fence on the south side of what is now his land, and the north line of the passway, 20 years ago, when he was only 10 years old, and that the road has been located where it now is for at least 25 years.

Martin says he has known the road for 30 years, and has been familiar with it for 28 years; while Wimp, who sold the 65-acre tract to Yeiser, and was formerly a considerable landowner in this neighborhood, says the passway has been a regular public passway and neighborhood road since 1874.

Wiggins lived in the neighborhood, and has known the passway since 1876. Other witnesses fix the length of the use at from 13 to 30 years; the weight of the proof favoring the longer period.

The law governing cases of this character has been well stated in the late case of Wray v. Brown, 155 Ky. 761, 160 S.W. 488, as follows: "The general rule, however, has been, time and again, laid down that where the use of a passway has been merely permissive on the part of the owner of the land, no length of time will deprive him of the right to reclaim it; but, on the other hand, where the use has been asserted as a matter of right by the public, and this use has continued uninterrupted for as much as 15 years, this uninterrupted use constitutes an easement that the users cannot be deprived of. It has further been ruled that where the use has continued for a long period of time, the burden is on the owner of the land to show that it was merely permissive."

Unquestionably the weight of the evidence sustains the appellees' contention that the passway has existed for at least 30 years, and probably longer. This long-continued use raised the presumption of a grant, which appellants wholly failed to rebut. The passway did not extend across the land of another, but followed the dividing line between the farms upon either side thereof. The chancellor properly found that the passway existed.

2. Appellants insist, however, that appellees were not entitled to the relief sought, because they had not shown any special injury to themselves on account of the obstruction to the highway. It will be readily admitted that one who uses a public highway cannot enjoin its obstruction unless he is able to show a special injury to himself, and that when he shows a...