Wright v. Willis

• Decision Date: 04 June 1901
• Parties: WRIGHT et al. v. WILLIS et al. [1]
• Court: Kentucky Court of Appeals

63 S.W. 991

WRIGHT et al. v. WILLIS et al. ^[1]

Court of Appeals of Kentucky.

June 4, 1901

Appeal from circuit court, Shelby county.

"Not to be officially reported."

Action by Mary J. Willis and W. I. Willis against Joseph Wright and Minnie E. Wright for an injunction. Judgment for plaintiffs and defendants appeal. Affirmed.

G. G Gilbert, for appellants.

Willis & Willis, for appellees.

HOBSON J.

This is a controversy as to a right of passway by appellees over the land of appellants. John McDowell inherited from his grandfather a body of land in Shelby county, near the Scotts Station and Antioch turnpike. Between it and the turnpike lay a tract of land owned by one Wesley Shipman, and a roadway ran from the pike through Shipman's land down to and through McDowell's land, and on through several other farms to another pike. This road had existed for a great number of years, and was generally used. For about the first quarter of a mile from the pike there was a lane, inclosed at the end furthest from the pike by a gate. This gate stood near the corner of McDowell's land. But the road did not strike his land at this point, but ran through Shipman's wood pasture for some 200 yards before striking McDowell's land. Some little distance beyond the mouth of the lane, as you went from the pike, was the public school house, which was used for many years. This road was the only way to the school house, and the only way for McDowell to get out to the pike. The proof shows that it was cut down in the clay to such an extent as to show it was a very old road. After this C. E. Fullenwider bought that part of the Shipman tract which lay west of the old road, and McDowell bought the part lying east of the road. In these deeds the line is called for as in the middle of the lane. McDowell then sold by executory contract to appellee Mary J. Willis the farm he inherited and originally owned, and in this writing it was stipulated that she was to have the passway out to the pike. Previous to this, however, he had made a verbal contract with Fullenwider to sell him the other tract if he made this trade, and pursuant to the agreement he then conveyed the other tract to Fullenwider before he made the conveyance to Mrs. Willis. In the deed to Mrs. Willis he omitted the stipulation about the passway out to the pike. The draftsman of the executory contract between them, who was her son-in-law, a few days later observed the omission, and spoke to McDowell about it. He said, in substance, that in making the deed to Fullenwider he had forgotten about the passway and therefore had to omit it in the deed subsequently made to Mrs. Willis, as he had already conveyed the land to Fullenwider, but that it would make no difference, as it was an old road, and could not be closed up. This occurred about the year 1884. About two years after this Fullenwider closed up the lane, and opened a new route from the mouth of the lane to the pike. Appellees used this road from that time until Fullenwider sold the property to appellant Wright, in the year 1892. There is some controversy in the record as to whether this change was made by consent of parties, or by Fullenwider of his own right; but we think the circumstances sustain the position of appellees on this point. After appellant Wright became the owner of the property, for convenience of parties, and in precisely the same way another change was made in the route, and some years after this last change was made the present controversy arose; Wright contending that appellees had no right to the road, and could use it only by his permission. The situation is shown on the following plot, on...