Trimble v. King

• Decision Date: 15 December 1908
• Citation: 131 Ky. 1
• Parties: Trimble v. King
• Court: Kentucky Court of Appeals

Page 1

131 Ky. 1

Trimble v. King

Court of Appeals of Kentucky.

December 15, 1908.

Appeal from Logan Circuit Court.

W. P. SANDIDGE, Circuit Judge.

Judgment for defendant, plaintiff's appeal — Affirmed.

SELDEN Y. TRIMBLE and J. B. GRUBBS for appellants.

S. R. CREWDSON for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

The appellants, Trimble, Crocker, Riggins, and Empson, filed their petition in equity against the appellee, King, in which they sought to require him to remove the obstruction in and upon a passway, to the use of which they alleged they and the public were entitled. It appears from the evidence that H. M. Trimble for many years prior to 1903 owned the land over which the passway in controversy extended, and that for 50 years or more it was open to the public and free from gates or other obstruction, and so remained until about 1898, when a tenant or lessee of Trimble erected two gates across it, one at each end; but the erection of these gates did not interrupt the travel, which continued, to some extent at least, until the way was closed to the public by appellee. There is some conflict in the evidence as to whether these gates were put up by the consent of Trimble or not. At any rate, they were there when appellee purchased the land from Trimble in July or August, 1902, and when he took possession under his purchase in January, 1903. A few months after appellee took possession, he removed the gates, put several fences across the passway, thereby preventing travel over it, and soon afterwards cleaned up the old roadbed, stopped up the gullies in it, and made it a part of his farm. The fences were not placed across the passway especially for the purpose of stopping travel on it, but rather to carry out appellee's plan in dividing up his farm into fields. In addition to this, at a point where there was a low place in the passway, he made a large and valuable pond at considerable expense, so that, if the passway were now opened, it would be necessary, in order to protect his farm, to build a fence on each side of the passway, rearrange the fencing generally, and change the passway where the pond is situated from its old location.

The suit was filed in April, 1906, more than three years after appellee built the fences across the passway effectually obstructing it, and more than two years after the pond was made, the roadway cleaned out, and filled up so as to make it a part of the adjoining land, and the fencing on his farm generally rearranged to conform to the plan adopted after the passway was closed and had become a part of the adjacent fields. The appellants lived near to or adjoining appellee's land, and were fully apprised at the time of the fact that he had closed the way and also of the other changes and improvements made. Indeed, these facts were known generally, not only by appellants, but by all others in the neighborhood, or who had any interest in the road remaining open; but no objection was at any time made by any person until this suit was filed. No effort of any description was resorted to to prevent the closing of the road or to warn appellee of the risk he took in making the improvements following the closing. He was permitted, without protest or objection, to expend large sums of money in cleaning and filling up the old roadway, building fences, and the pond, and not until nearly three years afterwards notified that an effort would be made to open the road, which, if successful, would cause him to suffer a loss estimated by more than one witness at $1,000. An examination of the evidence satisfies us that the reason no protest or objection was made to closing the road was because it was of little use or benefit to the public generally, or indeed to any individuals except the appellants Trimble and Riggins. As to them, the road was convenient, but not necessary. They had and have ways of ingress and egress over other roads, but the distance is not quite so short as if they could go through King's farm. It is also apparent that, although for many years this road was generally used, for several years immediately preceding its closure by King its use had greatly diminished. So much so that when King purchased the land the road, in places, had grown up in bushes and briars, and, in others, gullies rendered it difficult to travel....