Hansford v. Berry

CHIEF JUSTICE BENNETT delivered the opinion oe the court. The appellant brought his action of trespass against the appellee for removing the fences on appellant's land. The appellee justified upon the ground that the fences removed obstructed his right of way, and that they were only removed to the extent of removing the obstruction. The appellee claims a right of passway over .the appellant’s woodland. The appellant denies the right of pass-way, and claims that the use of the passway was by his permission only. So the question is: Yras the .passway over the appellant’s ivoodland by right or by permission only ? The lower court decided that it was by riglit, and the appellant has appealed. There is no proof that the right to pass over the appellant’s land was ever given by [58] any court, but the right to the pass way is claimed by adverse use for more than fifty years. The case of Bowman v. Wickliffe, 15 B. Mon., 84, is relied on as sustaining the position that no presumption arises in favor of the adverse use of a passway over woodland, but that the presumption is that the passage over woodland is by permission of the owner. It will be seen from the Bowman case that for many years there were several passways over the owner’s woodland; that they were changed from time to time by the owner, and one or the other discontinued as he cleared the land, and new ones opened, and that no one claimed the passway as a matter of right, but all claimed it by permission only. Under these circumstances the court hold that there was no presumption of adverse use, although such permission had continued for many years; that in order to create a right of way by prescription, it must be shown that it was claimed and used as an adverse right for at least fifteen years, and as long as it was used pcrmissively no presumption of adverse use could arise. In the case of O’Daniel v. O’Daniel, 88 Ky., 185, it was held that the Bowman case, supra, was unlike that case, because there the passwajr had not only been practically upon the same ground for many years, but the circumstances of the locality and constant’ and necessary use made it evident that it had been used adversely and under a claim of right. The case of Conyers v. Scott, 94 Ky., 123, reviews the Bowman and O’Daniel cases and points out the distinction very clearly. The case of Talbott v. Thorn, 91 Ky., 417, does the same. The doctrine established by the three cases supra is, that a right to a passway may be created by prescription over woodland if continued the requisite [59] length of time. In such case the question is: "Was the passway used as a matter of right for the period of fifteen years or more? If it was, and not in the manner indicated in the Bowman case, the right will be established over woodland as well as inclosed land. Now let us see what the 'weight of the evidence establishes. It is, first, 'that the appellant has no other way to reach the Livermore public road, which leads to the county seat, than the way in controversy. Second, that it has been used for such purpose at least fifty years, and by the appellee at least twenty years. And third, that the pass-way has been all the time substantially at the same place, and all the time has had a well-defined road-bed. Fourth, that the way has been kept up by the appellee as his passway; that the changes in it are only such as resulted occasionally from the fall of a tree across the road-bed, or similar obstructions. These facts clearly create the presumption that the passway was used as a matter of right, and having been so used for fifteen years and more, the appellee’s right to its continued irse is established. If it be a fact that appellant wants to clear his ground and fence it up there is nothing in this opinion that precludes him from applying to the county court to discontinue the right of way established in this case, and have another right of way opened for the benefit of the appellee. In which case the court will take into consideration the equities of all parties, and act accordingly. The judgment is affirmed.