Kimble v. Warren

Opinion op the Court by Judge Settle Affirming. This is an appeal from a judgment of the Hickman Circuit Court, quieting appellees ’ right to a passway lead [385] ing from tbeir home to a public road, traveled by them in going to and from tbe county seat; requiring appellant to remove from tbe passway a fence wbicb be bad erected upon and across same, and awarding appellees one cent in damages against appellant bn account of tbe obstruction in question. It was alleged in tbe petition that appellees were tbe owners of the passway by deed of conveyance from tbeir vendor and also by prescription growing out of its continuous adverse use by themselves and vendors for more than fifteen years before tbe institution of tbeir action and its obstruction by appellant. Tbe appellant’s answer denied appellees’ ownership of tbe passway; also tbe adverse user of more than fifteen years relied on by appellees; and alleged that tbe pass-way is included in tbe boundary of bis (appellant’s) deed, and that whatever use appellees bad made of same was purely permissive. There was a contrariety of evidence as to the title to tbe passway, tbe evidence introduced in appellant’s behalf tending to show that it was covered by bis deed, and that of appellees being to tbe effect that it was in a remote grantor of theirs who conveyed it to tbeir immediate grantor, by whom it was conveyed to them. It is, however, abundantly shown by appellees’ evidence, which is but slightly contradicted by that of appellant, that tbe former and tbeir vendors bad, for more than seventeen years prior to tbe institution of tbe action and tbe obstruction of tbe passway by appellant, continuously and adversely to appellant, bis vendors and all others, used tbe passway in going to and from tbeir. homes to tbe public road, claiming it as tbeir own; during tbe whole of wbicb time tbeir right to such' user was recognized by appellant, bis vendors and all others. Indeed, according to the evidence, only two or three years before tbe institution of this action appellant, in reconstructing bis fence along tbe line of the passway, set it in and.thereby increased the width of the passway two feet, making it for some distance twelve instead of ten feet in width. We are clearly of opinion that appellees have shown themselves entitled to tbe passwayinquestionbypreseription; that is, a right to the passway founded on tbe presumption of a grant, such presumption arising from the adverse, uninterrupted and continuous user of tbe pass-way by them for tbe statutory period of limitation, namely, fifteen years. O’Daniel v. O’Daniel, 88 Ky., 185; [386] Bowen v. Cooper, 23 R., 2065; Anderson v. Southworth, 25 R., 776; Chenault v. Gravitt, 27 R., 403; Com. v. Terry, 27 R., 684; Ray v. Nally, 28 R., 421; Tolbert v. Thorne, 91 Ky., 417; Riley v. Buchanan, 116 Ky., 625; Trustees Cin. Sou. Ry. Co. v. Slaughter, 126 Ky., 492. Wherefore the judgment is affirmed.