Smith v. Oliver

• Decision Date: 08 October 1920
• Citation: 224 S.W. 683,189 Ky. 214
• Parties: SMITH v. OLIVER ET AL.
• Court: Kentucky Court of Appeals

224 S.W. 683

189 Ky. 214

SMITH v. OLIVER ET AL.

Court of Appeals of Kentucky.

October 8, 1920

Appeal from Circuit Court, Allen County.

Suit by M. J. Oliver and others against W. H. Smith, to enjoin defendant from closing a passway across his farm. Judgment for plaintiffs, and defendant appeals. Reversed, with directions to dismiss the petition.

Noel F Harper, of Scottsville, for appellant.

Gilliam & Gilliam, of Scottsville, for appellees.

THOMAS J.

Appellees M. J. Oliver and others, who own a farm in Allen county joining on the north that of appellant and defendant below W. H. Smith, brought this suit against the latter in the Allen circuit court, to enjoin him from closing a passway over and across his farm and running from the premises of plaintiffs to the Halifax and Halfway public road, which road borders the southern boundary of defendant's farm. It is alleged in the petition that plaintiffs and their ancestor, George W. Oliver, have acquired, by more than 15 years' adverse use of the passway in question, a prescriptive right thereto, and that defendant's act in closing it was wrongful and illegal. The answer traverses the allegation of the petition, and a trial had, after taking a large volume of proof, resulted in a judgment, sustaining plaintiffs' claim and perpetually enjoined defendant from stopping the passway in the manner complained of, and to reverse that judgment defendant prosecutes this appeal.

The law with reference to the acquisition of a prescriptive passway over the land of another by adverse user is well settled in this state. The first proposition about which there is no conflict is that the uninterrupted, continuous, and unexplained use of the passway by the claimant thereto for a period of as much as or more than 15 years will raise a presumption that the use was under a claim of right which became absolute at the expiration of the 15 years, when the claimant would become vested with the title to the passway, which the owner of the servient estate must acknowledge and respect. Some of the later cases recognizing this rule are: Swango v. Greene, 155 Ky. 227, 159 S.W. 692; Fightmaster v. Taylor, 147 Ky. 469, 144 S.W. 381; Rogers v. Flick, 144 Ky. 844, 139 S.W. 1098; Driskill v. Morehead, 147 Ky. 107, 143 S.W. 758; Jefferson v. Callahan, 153 Ky. 38, 154 S.W. 898; Wray v. Brown, 155 Ky. 757, 160 S.W. 488; Salmon v. Martin, 156 Ky. 309, 160 S.W. 1058; Winlock v. Miller, 167 Ky. 717, 181 S.W. 330; Mitchell v. Pratt, 177 Ky. 438, 197 S.W. 961; Smith v. Pennington, 122 Ky. 355, 91 S.W. 730, 28 Ky. Law Rep. 1282, 8 L. R. A. (N. S.) 149; Brookshire v. Harp, 186 Ky. 217, 216 S.W. 379.

The theory upon which this principle rests is that the character of use described raises a presumption of a grant in favor of the claimant of the easement, but the cases referred to also assert a second equally well-settled proposition, that the presumption arising from such use is not a conclusive one, but is only a rebuttable one, under and by virtue of which the owner of the servient estate may show, in a controversy involving the right to the easement, that the use of it by the claimant was in fact permissive only, in which case the use would be but the exercise of a license, which the owner of the servient estate might revoke at pleasure. Just here it might be well to state that the principles of law above recited do not apply with the same force where the asserted easement traverses uninclosed woodland. Downing v. Benedict, 147 Ky. 8, 143 S.W. 756; Bales v. Rafferty, 161 Ky. 511, 170 S.W. 1184; Wray v. Brown, supra; Winlock v. Miller, supra. This distinction, with respect to inclosed and uninclosed land traversed by a passway, is thus referred to in the Wray Case:

"And so, too, there is, and ought to be, a marked distinction between the right of the owner of land to stop, by inclosure or cultivation, long-continued travel through a woodland, and to stop long-continued travel through inclosed or cultivated land."

The court then cites and quotes from the older case on this point (Bowman v. Wickliffe, 15 B. Mon. 84), and points out the distinction between that case and the later ones of O'Daniel v. O'Daniel, 88 Ky. 185, 10 S.W. 638, 10 Ky. Law Rep. 760; Talbott v. Thorn, 91 Ky. 417, 16 S.W. 88, 13 Ky. Law Rep. 401, and Hansford v. Berry, 95 Ky. 57, 23 S.W. 665, 15 Ky. Law Rep. 415. It was shown in the Wray opinion that the later cases cited did not change the law with reference to the acquisition of an easement across uninclosed land as originally announced in the Bowman Case, since in those later cases the court was influenced by the fact that the passway involved in each of them "was necessary to the use of the lands occupied by the persons asserting a right to it and had been so used by them without interruption for many years."

Another proposition applicable to prescriptive acquisitions of passways is that, where the use at its inception is shown to have been permissive no length of time may ripen it into a right, unless in the meantime there has been a distinct and positive assertion of a claim of right to the easement, and which assertion is brought home to the owner of the servient estate. Louisville & Nashville Railroad Co. v. Cornelious, 165 Ky. 132, 176 S.W. 964; Winlock v. Miller, supra, and many of the cases above cited.

With these principles of law firmly settled, it becomes necessary from the uncontradicted facts found in the record and those which we conclude the testimony establishes, to determine the rights of the parties. The passway in question is something like 300 yards long, and runs through a lane, or what according to the testimony might be more properly called a lot, about 60 feet wide, extending from a large pond on the northern edge of defendant's farm southward to the public road. The passway runs through the pond, which, according to the proof, is always from 3 to 4 1/2 feet deep, depending upon the season of the year. Prior to 1885 members of the public occasionally traveled an old road which ran just east of the passway in controversy, but it ran through uninclosed woodland, and its use, according to the proof, was by no means sufficient, under the authority of the cases supra, to show that it was exercised under a claim of right. In the year referred to John Cooksey, the then owner of the farm now owned by defendant (and who is now dead), gave to his son, Joe, a lease of 30 acres of the farm on the northern portion of it, the leased premises being just east of plaintiff's farm. To enable his son a ready access to the public road, and perhaps to some necessary outbuildings on the farm, the father agreed to permit his son to pass over that portion of the farm lying south of the leased premises, and he then fenced off the lot through which the passway now runs, and constructed and thereafter maintained at his own expense some gates across the lane or lot as well as one at each terminus. About...