Bowman v. Wickliffe , 54 Ky. 84 ( 1854 )

On the 5th of July, 1854,

Judge Simpson

delivered the opinion of the Court, which was suspended by a petition for a re-hearing, until the 18th December, 1854, when the petition was overruled—

William Coons was the patentee of twenty-four hundred acres of land, in one body, situated in the county of Nelson. He settled upon this land more than fifty years ago. He had ten or twelve children, to each of whom he allotted and conveyed separate and distinct parcels of said land, by metes and bounds. The residue thereof, except about two hundred acres, which he reserved for his own use, he conveyed to other individuals.

The public road from Bardstown to Bloomfield passes diagonally across this twenty-four hundred acres of land, and the occupants whoresided on that part of it which was most distant from Bardstown, had been in the habit, for forty or fifty years, of using a road that led through a part of the land into this public road. The road which had been so used was not, however, a public road, nor had it ever been so considered or treated. It was a private passway, known, regarded, and used as such. The land through which it had passed was uninclosed woodland, until about fifteen years last past, when, for the first time, the land adjoining the passway, along a portion of its site, was inclosed, leaving the passway open. Other portions of the land have, since that time, been inclosed, and a road left open of sufficient width for neighborhood use. This road has not, at least until the adjoining land was inclosed, had any fixed and certain locality. Its position has been changed, from time to time, according to the pleasure and discretion of the proprietors of the land through which it passed. A private passway, running in the same general direction, has, however, existed for at least fifty years.

It appears that four or five other roads of the same description passed through this same tract of land, and were traveled on and used for many years, but were all eventually discontinued by the owners of the land over which they passed, who fenced up and inclosed the land, and thus terminated the existence of these passways.

Wilson Bowman having, by purchase, become the owner of nearly all the land over which the private road first mentioned passed, and also that which adjoined it on both sides, run his fences in the year 1851, in and across it, so as to prevent all further use of it as a passway.

C. A. Wickliffe is the owner of two hundred acres, part of Coons’ patent boundary, which two hundred acre tract is that part of the land which is nearest to the town of Bardstown. He also owns about fifty-seven acres in the boundary of the twenty-four hundred acres, near the other and more distant end of the tract. The passway inclosed by Bowman had been used by Wickliffe for some fifteen years, in passing to and from his two hundred acre tract to this fifty-seven acre tract; and it had been previously used for many years by the former occupants of the last mentioned tract of land, before it was purchased by Wickliffe. .

A petition in equity was filed in this case by Wickliffe vs. Bowman, in which he set up and relied upon a right to the use of this passway. He claimed it under an alleged dedication of the land over which it passed by the fee simple owners thereof to the use of all those who occupied land inside of Coons’patent boundary, and any other persons who might think proper to use it. He relied upon the long, uninterrupted use and enjoyment of it by the occupants of the land and others, as fully sufficient to establish his claim. He prayed that he might be quieted in the use and enjoyment of -it, and that the defendant, Bowman, might be enjoined from inclosing it, or otherwise disturbing his right to its use.

The defendant, Bowman, in his answer, denied that any dedication of the land, of the nature, or for the purpose mentioned by the plaintiff in his petition, had ever been made. He alleged that the passway had been used by the mere permission of the owners of the land, who had a right, as he contended, at any time, to inclose it, and thus to prevent its being used as a pass way.

1. A dedication of land to be used aa a private passway cannot be inferred from the fact that the proprietor, for a great number of years, permitted bis land to be bo used, and subsequently conveyed it, covering the passway. '3. The cusKentuckyUal of travciling over without asking permissionof tends ' to repel ITde'dfcaTiVn from the mere fact of unincloscd land being bo nsed.

The court below rendered a judgment establishing the right of the plaintiff to the use of this road, and enjoining the defendant from inclosing it, or in any manner interfering with the plaintiff’s right to its use. From that judgment the defendant has appealed to this court.

No express act of dedication is relied upon in the pleadings, or established by the testimony. If Coons, the patentee, had merely conveyed the land on each side of the passway, a dedication of its use by him to his grantees might have been implied from the mode in which the conveyances had been made; but he did riot do that. He conveyed the whole of the land through which the road passed, not reserving any part of it for a passway. Nor does it appear that he reserved, in the conveyances which he executed, a right of way either in favor of himself or any of his grantees over the land thus conveyed. Nor was there any act done by his grantees which amounted to a dedication, or from which an intention to make a dedication can be implied.

Unless, then, a dedication or grant of the right of way can be implied from the use and enjoyment of the r.oad for forty or fifty years without interruption, there is nothing in this case tending in any degree to show that any dedication or grant was ever made.

It has been usual and customary in this State to travel over uninclosed woodland without asking permission of the owner; and considering the extent and universality of this custom, it tends strongly, « not conclusively, to repel any presumption that might otherwise arise, in such a case, from long con-tinned use of the grant of the right of way by the proPretor of the land. The mere use of this road, then, during the period of time that the land through which it passed was uninclosed woodland, cannot be regarded as proving anything detrimental to the rights of the proprietors of the land. Roads also are frequently made and left open by the owners of land for their oWn convenience, and the mere fact that other persons are permitted to use and enjoy such roads, does not, of itself, tend to create a presumption of a grant of the right of way by the proprietor of the soil, to them or to the public.

3. To create a presumption of right to the oBe of a pass-way by long use, it should appear that it had been long so used, under a claim of right, and not by mere permission. 4. The fact that the' owner of the soil, himself, frequently changed the position of the road or passway and no complaint made of such-change is presumptive evidence that no right was claimed by others.

The use of a passway, to create a presumption of a grant, must have been claimed and enjoyed as a right, and not merely as a privilege, which the proprietor of the land might have withdrawn at his pleasure.

Here, the persons who used the passway, as well as those over whose land it passed, regarded its enjoyment as depending exclusively upon the permission of the owners of the land. Their right to inclose it, and deprive those who used it of its enjoyment, does not seem to have been questioned. All, or nearly all, of the witnesses testify, that they always supposed the owners of the land had a right to stop up the passway or not, at their option. It does not appear that the right to have it kept open, was ever claimed by any person, unless it was by the defendant himself, on a single occasion, before he owned the land on botb sides of the passway, and then the claim does not seem to have been acknowledged or respected by the other owners of the land over which the road passed.

The fluctuating character of the position oí this road demonstrates that its use was merely permissive, and was not claimed as a right by those who enjoyed it. Besides, a fixed and determinate locality is necessary, under any circumstances, to justify a presumption of a grant; for unless the use and enjoyment of the same identical road, on or so near the same ground as to render the change of locality, if one be made, really imperceptible, be continued uninterruptedly, for a sufficient length of time to create such a presumption, none can legally arise. The fact that the site of a road'is determined and regulated, as was the case in the present instance, by the owners of the land over which it passes, evinces clearly that the use of it is not claimed as a right by those who travel on it.

5. The right of way by one person over the land pf. another must be for 20 years at -least before any pre^ sumption of a grant of the right can :arise-merely from the ■use, and then the Use must bave been enjoyed under Such ' circumstances as indicate that it had been claimed as a right, and not enjoyed as a mere privilege.

The use of a right of way by one person over the lands of another, must be continued at least twenty years before any presumption of a grant of the right can arise merely from the use. And then the use must have been enjoyed under such circumstances as would indicate that it had been claimed as a right and had not been regarded by the parties merely as a privilege revocable at the pleasure of the owner of the soil. PIere the road was not used more than fifteen or sixteen years, and part of it only some three or four years after the land was inclosed, before it was discontinued by the defendant. Its previous use, whilst it passed through woodland not inclosed, we do not think is entitled to any weight under the circumstances in this case. Besides, it is perfectly evident that the use of this passway was at no time, or, at least, not until within a few years past, claimed as a light, but was regarded by all parties as a mere privilege allowed by the owners of the land, which they had a right to withdraw at pleasure.

It has been contended in argument, on behalf of the- claim asserted by Wickliffe, that the sale and conveyance of this fifty-seven acres of land by the patentee to one of his sons, gave, by implication of law, to him and his vendees, the rig-ht of ingress and egress'to the land thus conveyed. This ground was fiot assumed by the plaintiff in his petition, nor has he established such facts as are essential to sustain a claim based upon it. It does not appear’ that the patentee at the time he conveyed this fifty-seven acres, owned any of the land over which thé road in question passed. Pie may have previously ■ conveyed it all- to other persons. Unless the land belonged to him at that time, no right to pass through it could arise in favor of his grantee. Neither the date of that, or of any other conveyance made by the patentee, was shown, nor were any of the matters upon which such aright essentially depends'alleged by the plaintiff, or put in issue by the parties, or established by the testimony.

It might be argued that the plaintiff must have a a passway to this fifty-seven acres of land as a matter of .necessity, and therefore he is entitled to the use and enjoyment of the road in question. But the testimony shows that he can approach to within a short distance of this piece of land by a public road, and that the defendant, being the owner of the land that lies between the plaintiff’s land and the public road, had, before he shut up the road in contest, made a lane from the public road to the plaintiff’s land, for his special use. It is true that this road is more distant than the other. But the plaintiff, to get to his land by the road he claims, will have to pass nearly three-quarters of a mile through the lands of the defendant; and if the latter be compelled, as he is required to do by the judgment of the court below, to keep this road open for the plaintiff’s use, he will have to make much additional fencing that would be unnecessary, if the road was not required to be kept open. The inconvenience that the plaintiff will be subjected to by having to use the public road, is much less than that which would be imposed upon the defendant by his being compelled to keep a road open through his land for the use of the plaintiff, who, from the testimony, seems to be nearly the only person who has any use for it, or to whom it will be of any special advantage. The plaintiff is entitled to a passway from his fifty-seven acres of land to the public road, which runs at no great distance from it; and has, by statute, a remedy to obtain it. Having been furnished with such a passway by the defendant, he had no right to any relief in a court of equity.

Wherefore, the judgment is reversed, and cause remanded with directions to enter a judgment dismissing the plaintiff’s petition.