Sandman v. Highland

• Decision Date: 31 January 1950
• Citation: 312 Ky. 128
• Parties: Sandman et al. v. Highland et al.
• Court: United States State Supreme Court — District of Kentucky

312 Ky. 128

Sandman et al. v. Highland et al.

Court of Appeals of Kentucky.

January 31, 1950.

Suit by Millard Highland and others against Roy Sandman and others to enjoin defendants from severing or impairing a certain passway extending over property of the defendants, use of which was claimed by the plaintiffs and for damages for wrongful and illegal acts already committed.

The Circuit Court, Kenton County, Joseph P. Goodenough, J., entered a decree for plaintiffs, and the defendants appealed.

The Court of Appeals, Knight, J., held that the finding that plaintiffs were entitled to the easement involved was sustained by the evidence but that a mere change in grade of passway did not adversely affect the plaintiffs.

Decree affirmed in part and reversed in part.

1. Easements. — Finding that the plaintiffs had right to use certain passway over the land of the defendants was sustained by the evidence.

2. Easements. — Clause in a deed giving grantee, her heirs and assigns the right to use road over the property of the grantor was an easement running with the land and one who purchased the property of the grantor took it with burden of such easement.

3. Easements. — Finding that plaintiffs had a prescriptive right to use of passway over the land of the defendants was sustained by the evidence.

4. Easements. — The servient owners must permit the free and unrestricted use of passway by the owners of the dominant estate and the latter must use their rights so as to be as little burdensome as possible to the servient estate.

5. Easements. — A mere change for the better in the grade of a passway over the lands of the defendants did not adversely affect the owners of the dominant estate.

Bert J. King and Ralph P. Rich for appellants.

Howell W. Vincent for appellees.

Before Joseph P. Goodenough, Judge.

JUDGE KNIGHT.

Affirming in part, reversing in part.

I. Appellees, ten in number, brought this suit against appellants to enjoin them from severing, destroying or impairing a certain passway extending over property of appellants, the use of which is claimed by appellees, and for $500 damages for wrongful and illegal acts alleged to have already been committed. Although denying appellees damages, appellants were permanently enjoined from interfering with appellees' use of the road and appellants were directed to restore the road to the same condition it was in before they built another roadway across it and to restore the old grade. It was further adjudged that all appellees, including Cason and Monson, were entitled to use the old roadway referred to in the pleadings. Appellants appeal from that judgment.

Appellees are the owners of small acreage tracts of land lying in Kenton County near the town of Independence. The lots or tracts are either contiguous to or lie near each other and are located in the Hattie Colston Subdivision, and all titles trace back to and each is a part of a larger tract known as the Winston Estate. The large Winston tract was located on the Taylor Mill Pike. When William Winston conveyed to Hattie Martin (Colston) the 33 1/4 acre tract which later became the Colston Subdivision, he granted her a passway over his remaining lands to the Taylor Mill Pike in the following language: "The grantee herein her heirs and assigns shall have the right to the use as such of a passway or road 16 1/2 feet wide leading from her southern most line to said pike, said passway or road being that old road long used as such passway to said old homestead; and grantee her heirs and assigns shall bear a proportionate share of the cost of maintaining such road."

It is conceded by appellants that all the appellees, except Allen Monson and wife and Marion Cason and wife, have a passway over land belonging to appellants, which also was part of the old Winston tract, to Taylor Mill Pike. But appellants contend that the Casons and the Monsons have no right to the use of this passway from their tract to the Taylor Mill Pike and they make that point the first point in the appeal from the decision of the lower court which held that they did have such right. It is true that the Monson and Cason tracts trace back to the Winston tract through a different chain of title than do the tracts belonging to the other appellees, and their right to the passway is not spelled out as clearly as are the others. However, we agree with the Chancellor that "the proof and exhibits prove that all of this property, including the property of Sandman (appellants) was burdened with this easement or roadway in favor of Hattie Martin (Colston). The clause in the deed from Winston to Hattie Martin (Colston) giving to her, her heirs and assigns, the right to use this road from her southernmost line to the Taylor Mill Pike, which includes the Sandman property, was an easement running with the land. Mannion v. Adkins, 199 Ky. 241, 250 S.W. 974; Buck Creek Railroad Co. v. Haws, 253 Ky. 203, 69 S.W. 2d 333. When Sandman purchased the property he took it with the burden of the easement over and through his property."

The lower court further held, correctly we think, that all the appellees, including Monson and Cason, have a prescriptive right to use the passway over the land of appellants, basing his decision partly on the testimony of Scott Winston, 83 years of age, that the old road had been used for more than 70 years although it had remained a private road up to the time his uncle, William Winston, sold part of the land to Hattie Martin (Colston) on May 12, 1923. The lower court found that appellees and their...