Swango v. Greene

• Decision Date: 10 October 1913
• Citation: 155 Ky. 227,159 S.W. 692
• Parties: SWANGO v. GREENE.
• Court: Kentucky Court of Appeals

159 S.W. 692

155 Ky. 227

SWANGO v. GREENE.

Court of Appeals of Kentucky.

October 10, 1913

Appeal from Circuit Court, Grant County.

Action by Sylvester Swango against Daniel Greene. Judgment for defendant, and plaintiff appeals. Affirmed.

W. E Clay, of Williamstown, for appellant.

C. C Adams, of Williamstown, for appellee.

SETTLE J.

The appellant sought, in this action, to have the circuit court adjudge him entitled by prescription to a passway over the land of appellee, leading from his (appellant's) residence and land to the Holbrook and Stewartsville turnpike. The passway runs in an easterly direction from appellant's land and upon a ridge of appellee's land a distance of 2,840 feet, to its intersection with the turnpike. Appellant's claim to the passway is bottomed upon his alleged adverse, continuous use of it for more than 15 years before the institution of the action. The answer of appellee admits appellant's use of the passway as much as 15 years, denies that it has been adverse or continuous, and alleges that it was purely permissive. By agreement of the parties, the evidence taken in the case was furnished by the oral testimony of the witnesses delivered in open court, following which judgment by the court was entered dismissing the petition at appellant's costs. From that judgment the latter has appealed.

Examination of the many cases, in respect to passways, decided by this court will show that they uniformly hold that a right by prescription to a passway is founded on the presumption of a grant; such presumption arising from the adverse, uninterrupted, and continuous use of the passway by the person asserting the prescriptive right thereto for the statutory period of limitation. O'Daniel v. O'Daniel, 88 Ky. 185, 10 S.W. 638, 10 Ky. Law Rep. 760; Bowen v. Cooper, 66 S.W. 601, 23 Ky. Law Rep. 2065; Anderson v. Southworth, 76 S.W. 391, 25 Ky. Law Rep. 776; Chenault v. Gravitt, 85 S.W. 184, 27 Ky. Law Rep. 403; Talbott v. Thorn, 91 Ky. 417, 16 S.W. 88, 13 Ky. Law Rep. 401; Riley v. Buchanan, 116 Ky. 625, 76 S.W. 527, 25 Ky. Law Rep. 863, 63 L. R. A. 642, 3 Ann. Cas. 788; Commonwealth v. Terry, 86 S.W. 519, 27 Ky. Law Rep. 684; Ray v. Nally, 89 S.W. 486, 28 Ky. Law Rep. 421; Trustees Cin. Southern Ry. Co. v. Slaughter, 126 Ky. 492, 104 S.W. 291, 31 Ky. Law Rep. 913.

But it is equally well settled by these and other decisions of this court that the presumption of a grant from mere user, though continued beyond the statutory period of limitation, does not arise and cannot be indulged by the court, if it be made to appear that the use of the passway has been only permissive (that is, enjoyed by the claimant by prescription), as a mere privilege accorded by the holder of the legal title to the passway. Prewitt v. Houstonville Cemetery Co., 101 S.W. 892, 31 Ky. Law Rep. 125; Boyd v. Morris, 106 S.W. 867, 32 Ky. Law Rep. 642; Roland v. O'Neal, 122 S.W. 827; L. & N. R. Co. v. Hagan, 141 Ky. 20, 131 S.W. 1018, 35 L. R. A. (N. S.) 189. Applying the rule stated, it remains to be determined from the evidence in the instant case whether appellant's use of the passway in question has been of such a character as to give him the prescriptive right to it asserted in the petition.

As appellant's use of the passway for more than 15 years is admitted by appellee's answer, the burden of overcoming the presumption that such user was a matter of right is upon appellee, who must show by proof that the use was merely permissive. Goldberg v. Cleveland, 111 S.W. 682, 33 Ky. Law Rep. 953; Smith v. Pennington, 122 Ky. 355, 91 S.W. 730, 28 Ky. Law Rep. 1282, 8 L. R. A. (N. S.) 149; Sparks v. Rogers, 97 S.W. 11, 29 Ky. Law Rep. 1170.

Appellant proved by a number of witnesses that he had freely used the passway for perhaps as long as 20 years; on the other hand, appellee proved by an equal or greater number of witnesses that his use of the passway was merely permissive. One of the witnesses, G. M. D. Elliston, who originally owned and occupied the land on which appellant now lives, testified that, though he used the passway over appellee's land now in controversy, he asked and got permission of appellee's vendor to do so. E. K. Greene, a former sheriff and magistrate of Grant county, testified that he was a tenant on the farm now owned by appellee shortly before appellant acquired title to his farm, and that, during his tenancy of appellee's farm, Elliston, the then owner of appellant's farm, obtained permission from him to use the passway. The evidence thus far mentioned, being uncontradicted, clearly establishes the fact that the passway as originally created was accorded as a privilege, and that the use thereof down to the time appellant became the owner of his farm was purely permissive. It also appears from the testimony of appellee that he knew, at the time of his becoming the owner of his farm, that the use of the passway by persons residing upon appellant's farm had been enjoyed by mere permission of his vendor, and that he (appellee), after taking possession of his farm, consented to its further use by appellant as a mere accommodation. But it nowhere appears from the evidence that he ever had any notice or information, prior to the institution of this action, of any claim on the part of appellant that his use of the passway had been changed from its original nature or was otherwise than permissive. This being true, it would seem that the rule announced in Fightmaster v. Taylor et al., 147 Ky. 469, 144 S.W. 381, should be made to apply to the facts here presented. The rule is stated in the opinion as follows:

"The law is well settled that the permissive use of a passway for any number of years does not deprive the owner of the land of the right to close it at any time; and, when the use is originally acquired by permission, the character of the passway is established, and such use continues to be permissive until

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