Whitaker v. Yates

• Decision Date: 19 October 1923
• Citation: 255 S.W. 102,200 Ky. 530
• Parties: WHITAKER v. YATES.
• Court: Kentucky Court of Appeals

255 S.W. 102

200 Ky. 530

WHITAKER v. YATES.

Court of Appeals of Kentucky.

October 19, 1923

Appeal from Circuit Court, Floyd County.

Action by Reuben Whitaker against Samuel Yates. Judgment for defendant, and plaintiff appeals. Affirmed.

B. M James and A. B. Combs, both of Prestonsburg, for appellant.

W. W Williams and B. F. Combs, both of Prestonsburg, for appellee.

THOMAS J.

This equity action involves the right of appellant and plaintiff below, Reuben Whitaker, to an unobstructed easement for a private passway over the land of appellee and defendant below, Samuel Yates, in Floyd county, and running from his land and residence thereon to a public road on the bank of Middle creek, across defendant's land along Cane branch, to where it intersects the public road. Near the point of intersection defendant erected a gate across the pathway, and this action was filed by plaintiff to compel him to remove it, and to prevent him from erecting similar future obstructions.

The right to the passway free from obstructions is claimed (a) by prescription, and (b) under an express grant contained in the deed executed by defendant to plaintiff on November 4, 1904, conveying to the latter his tract of land. The answer denied the prescriptive right, and denied that the grant of the passway surrendered the defendant's right as the owner of the servient estate to erect gates across it, especially at its termini, so as not to unreasonably interfere or obstruct plaintiff's use of it. Appropriate pleadings made the issues, and after the proof was taken the cause was submitted and the court dismissed the petition, and from that judgment plaintiff appeals.

At the time of the execution of the deed the defendant owned a large tract of land on Middle Fork creek in Floyd county. Cane branch ran through it and emptied into the creek, and the land conveyed was about 75 acres near the head of that branch. Prior to and at that time but few people lived in the immediate neighborhood of the conveyed land, and most of them were tenants on defendant's tract. A public road bordered defendant's farm, which at that place paralleled and ran near to Middle creek, and the persons living on the head of Cane branch had access to the road over an old path called by some of the witnesses a "bridle path," along the bank of Cane branch across defendant's farm, which entered the public road at the rear of defendant's garden near his residence and storehouse. For a long while there had been a fence on the upper side of the pathway from Cane branch, but on the other side it was uninclosed woodland.

The language of the grant in the deed is:

"The parties of the first part (defendant and wife) also grant to the said party of the second part (plaintiff) a good wagon road down the branch where the road is now located to the main state road."

After taking possession of his land plaintiff did some work to the passway so as to enable him to travel it with vehicles, and it was used by him in that condition as a means of ingress and egress to his farm for some 12 years or more, when defendant saw proper to inclose a portion of his land on the Cane branch side of the passway, and he erected a gate at or near the point where the passway entered the public road. Plaintiff was displeased with the location of the gate and made some complaint to the Masonic Lodge, of which he and defendant were members, and that complaint resulted in defendant moving the gate some 30 feet up the passway and away from the point of entry into the public road. That location was less objectionable to plaintiff, but he was still displeased and contended that defendant had no right to erect a gate or gates across the passway at any point, and this equity action followed.

At the outset it may be stated that we do not think the evidence sufficient to sustain the prescriptive right relied on to the...