Wray v. Brown
| Decision Date | 13 November 1913 |
| Parties | WRAY et ux. v. BROWN et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Hickman County.
Action by J. J. Brown and others against J. W. Wray and wife. From a judgment for complainants, defendants appeal. Reversed, with directions to dismiss.
R. L Smith and J. D. Via, both of Clinton, for appellants.
Robbins & Robbins, of Mayfield, Joe W. Bennett, of Clinton, and Gus Thomas, of Mayfield, for appellees.
This is a passway case. The appellees, Brown, Cochran, and Sutberry claiming to have a right of passway over the lands of the appellants, Wray and wife, brought this suit in equity to enjoin them from obstructing the way. The lower court granted the relief sought, and the appellants, who were defendants below, bring the case here for review.
It appears from a map filed with the record that the appellees live near by and have easy and uninterrupted access to a public road known as the Hickman and Oakton road. This road runs east and west. Four hundred yards north of this road and running parallel with it, is the Oakton and Hailwell road. The tract of land owned by the appellants over which the passway is claimed lies between these two roads, and contains 82 acres. The asserted passway runs across the 82 acres, connecting the two roads mentioned near the western end of the 82 acres. At the eastern end of the 82 acres the two roads are connected by a public road. If the appellees--and they are the only ones who appear to be particularly interested in the opening of this passway--desire to go in a northerly direction to the towns of Columbus or South Columbus, or the post office at Hailwell, or Cromwell's Mill, or the churches in that section, they could go over this passway if it were opened from the Hickman and Oakton road to the Oakton and Hailwell road, and by way of this road to the places named, or they could go over the public road that connects the two roads; but to go over the public road would be something over a mile farther than to go over the passway. If they wished to go to Clinton, the county seat of Hickman county, or to the town of Oakton, where there are churches, and a post office, and a railroad station, they would not travel this passway, but would go on the Hickman and Oakton public road. So that this passway is not necessary to enable the appellees and others who live in that neighborhood to go to the county seat, or the post office, or to the railroad station, or to church. Nor is it used by them in going to these places. It is only more convenient for them when they wish to go north towards Columbus, and this convenience consists simply in the fact that it is about a mile nearer to go by the passway than it would be to go around by the public road.
The evidence also shows that to open a passway across this land would damage the appellants between $500 and $1,000. It is further shown that the land over which this passway is claimed is uncultivated woodland, and was uninclosed until about 10 years ago; that the public generally for 30 or 40 years have traveled over this woodland from one of the public roads to the other, excepting a period of about 2 years within the last 10 years when the land was inclosed, and the passway obstructed by a fence erected by appellants. The route over which the public traveled in going across this land, except at the points where it left the two public roads, was changed from time to time as conditions made it advisable. The land was not in cultivation, and so it was a matter of little consequence where the line of travel went, and persons who crossed this land went through the woods any way they wanted to go, selecting the way that they thought most accessible. As is always the case in travel of this kind, when a way is marked through a woods or uninclosed field, the travel will follow the marked way until it becomes muddy or obstructed, and then a new route close by will be followed. But subject to these changes in the location of the route, which were made from time to time, the general course of travel through the woodland was the same.
It is also shown that about ten years ago the appellants extended their clearing on the east out of the then marked passway, and to inclose the clearing built a fence in the marked passway, thus obstructing it entirely. When this was done, a new route following in a general way the line of this fence was adopted by those passing through. It is further shown that about six or eight years ago the appellants inclosed this woodland by a fence on all sides, leaving a gate on the north end for their own use, and that the travel through this woodland was obstructed and practically stopped for about two years.
Although the appellants put their fence as stated in the road that had been marked by travel as a passway, and...
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