Fightmaster v. Taylor

Opinion op the Court by Judge Lassing — Affirming. James and Joe Taylor own a farm in Owen County on tire Owenton -and Stamping Ground turnpike road, and appellants own a farm lying back of tbe Taylor farm. Appellants for many years, it appears, passed out from their bouse over tbe Taylor farm to said pike. They bad another outlet tbe other way, but that was on to a creek road which was much of the year rough and not of easy passage, while the outlet through the Taylor farm was along a ridge and practically level. Taylor closed up this passway and refused to permit appellants to use it. Thereupon they instituted a suit in which they sought to enjoin the Taylors from interfering with their use of this outlet. The Taylors, defended and pleaded that it was merely a permissive use; and upon this issue the proof was taken and the case tried out. The Chancellor found in favor of the defendants and dismissed the petition, and the plaintiffs appeal. The evidence shows that seventy or eighty years ago, when the land of which these farms is composed was practically all in timber, those living back of and beyond the land now owned by appellants passed out from their places to the road over the land owned by appellee. But according to the testimony of appellant, Mrs. Nancy E.Foster,who has been intimately acquainted with the land for seventy or eighty years, and who-se father was one' of those who helped to open up this passway, it was at all times merely a permissive use. And the proof shows further that for as much as seventeen years before this litigation was commenced the Tay [471] lors, and those under whom they claim, have at intervals locked the gates and closed the passway to the use of appellants and all others. The law is well settled that the permissive use of a passway for any number of years does not deprive the owner of the land of the right to close it at any time; and when the use is originally acquired by permission, the character of the passway is established, and such use continues to be permissive until 'something is done bringing notice home to the owner of the land that the character of the use has been changed. Hall v. McLeod, 59 Ky., 98; Conyers v. Scott, 94 Ky., 123. It is only where a claimant has had an uninterrupted use of a passway for a great number of years that a grant will be presumed. Bowman v. Wickliffe, 54 Ky., 84; Beall v. Clore, 69 Ky., 676. The evidence in this case shows beyond question that the passway in dispute was never claimed by those who used it as a matter of right, but at all times with the consent or permission of the owner of the land over which it ran. The Chancellor correctly held that plaintiffs .were not entitled to the relief sought. Judgment ■affirmed.