Smith v. Pennington

• Decision Date: 16 March 1906
• Citation: 122 Ky. 355,91 S.W. 730
• Parties: SMITH v. PENNINGTON et al.
• Court: Kentucky Court of Appeals

91 S.W. 730

122 Ky. 355

SMITH v. PENNINGTON et al.

Court of Appeals of Kentucky.

March 16, 1906

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by W. M. Pennington and others against James Smith. From a decree in favor of plaintiffs, defendant appeals. Reversed.

C. W Lester, for appellant.

Sharpe & Siler, for appellees.

CARROLL C.

The appellees are the owners of a small farm on the Cumberland River, in Whitley county, on which they have resided for 40 years. Their way of ingress and egress to and from the public road, that furnishes a highway to the church, mill, and courthouse, has been during all of this time over the land now owned by appellant, and that lies between the farm of appellees and the public road. Appellant purchased the land over which the passway runs some 16 years ago from one Sears and until the appellant became the owner of it it was an uninclosed woodland. When appellant bought it, he inclosed it with a fence, but put a gate in the fence, on both of his outside lines, where the passway was, so that appellees and other persons desiring to travel the passway could do so by going through these two gates. These gates were maintained by appellant for something like 14 years, when he concluded to take the gates down and put a fence across the passway, being induced to do this by the frequency with which the gates were left open and the consequent injury to his crops and premises. Appellees then instituted this action to enjoin the appellant from obstructing the passway, asking that he be required to remove the obstacles that he had placed in it and which interfered with its use, claiming that they and those under whom they had title had used the passway as a matter of right, adversely and openly, as against the appellant and those under whom he claims, for more than 40 years. Appellant in his answer does not deny the use of the passway, but alleged that the use by appellees, and those under whom they claim, had at all times been permissive, and that no claim of right to it had ever been asserted by them. Upon a hearing of the case, the lower court granted the appellees the relief sought, and directed appellant to remove any gates or other obstructions that he had placed across the passway.

The evidence is very conclusive that appellees, and those under whom they claim, had been passing over the land now owned by the appellant, for at least 40 years before the institution of this action. There is little, if any, dispute about the facts in this case. A passway over an uninclosed woodland had been used for more than 30 years before appellant purchased the land and inclosed it, and has been used during the 16 years that appellant has owned it. There was no grant of a passway either verbal or otherwise. No one was ever prohibited from using it, no person ever asked permission to use it, nor was any person ever given permission to use it. Appellant testifies that he placed the gate in the fence across the highway merely as a favor to the appellees. It does not appear that the public generally used the passway or that the general public claimed any right in its use. The only persons who have enjoyed it are appellees and occupiers of the tract of land owned by them. The use of this passway not being claimed as a matter of right, the question is will the mere use of a passway for 40 or 50 years give to the user such a right in it, that the landowner cannot revoke the privilege. This court has held in Wilkins v. Barnes, 79 Ky. 323; O'Daniel v. O'Daniel, 88 Ky. 185, 10 S.W. 638; Wathen v. Howard, 84 S.W. 303, 27 Ky. Law Rep. 7; Chenault v. Gravitt, 85 S.W. 184, 27 Ky. Law Rep. 403; Newcome v. Crews, 98 Ky. 339, 32 S.W. 947; Burch v. Blair, 41 S.W. 547, 19 Ky. Law Rep. 641; Brown v. Barton, 82 S.W. 405, 26 Ky. Law Rep. 711; Potts v. Clark, 62 S.W. 884, 23 Ky. Law Rep. 332; Anderson v. Southworth, 76 S.W. 391, 25 Ky. Law Rep. 776; Browning v. Davis, 53 S.W. 9, 21 Ky. Law Rep. 787; and in other cases--that a grant of a right of way by prescription will be presumed from an uninterrupted, unexplained, adverse...