Home/Court of Appeals of Kentucky/Bridwill v. Neltner

Bridwill v. Neltner

191 S.W. 633, 173 Ky. 847, 1917 Ky. LEXIS 524
CourtCourt of Appeals of Kentucky
DecidedFebruary 13, 1917
StatusPublished
Cited by5 cases

This text of 191 S.W. 633 (Bridwill v. Neltner) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bridwill v. Neltner, 191 S.W. 633, 173 Ky. 847, 1917 Ky. LEXIS 524 (Ky. Ct. App. 1917).

Opinion

[848]*848Opinion of the Court by

Chief Justice Settle

Affirming.

This is an appeal from a judgment of the Campbell Circuit Court refusing the appellants, Edward L. B rid will and Anna L. Bridwill, his wife, the use of a passway maintained by the appellees, Joseph Neltner and others, on their land, from another and older pass-way also on their land, -which had long been traveled by appellants from their land and residence in getting to the county road leading from Aléxandria to Onenito, both in Campbell county. The judgment also denied appellants a mandatory injunction asked to compel the removal by appellees of a gale erected by them across the passway first mentioned. The attached map will indicate with approximate correctness the situation of the lands owned by the parties, respectively, and the locations of the two passways. It will be observed from the map that appellants’ land adjoins and lies southwest of that of appellees, and that the east boundary of the land of the latter lies on the Ohio river, and on the north- borders for a considerable distance upon the county road running from Alexandria to Onenito. The old passway, which for many years had been used by appellants and their vendors, runs from the letter “A,” ■on their land, shown on the map, down a tributary of Ten' Mile creek through the land of appellees to an old ford on Ten Mile creek, thence in a northerly direction over the land of one Marsh to the letter “C,” where it intersects the county road, and the county road formerly, and for a great many years, ran from letter ££ C” to letter ££ Gr” on the map; thence at right angles and. in a southwardly direction across the land of appellees; but about ten j rears ago the county road was changed, that part of it from the letter ££ D” to the letter “G-” on the map being abandoned, and it was then made to run from the letter “D” southwardly to the letter ££ E” on the map; thence eastwardly to the letter ££ F” where it entered the road leading to Onenito. When'the road was changed by running it from ££ D” to ■“E” the fiscal court of the county caused to be constructed, a short distance from the letter ££ E,” a bridge across Ten Mile creek. Shortly thereafter the appellees ■erected on the bluff near, and west of letter £i E,” a dwelling house, and about the same time established for their own use the passway which as shown on the map [850]*850leaves the old passway, so long used by appellants and! their vendors at the letter “B,” and intersects the county road at the letter ££ E” near the bridge on Ten Mile creek. This passway is the one in controversy; it being the contention of appellants that as it constitutes a mere change in the old passway they are entitled to its use and it will afford them a better and nearer route to the county road. On the other hand it is the contention of appellees that the new passway was not intended to he, and is not a change of the old passway, but was made for the use of themselves and tenants alone, and that appellants are not entitled to the use thereof; that, in getting from their land to the county road, appellants are confined to the old passway which intersects the county road 'at “G,” to which they had acquired a light by long use and prescription, although it runs in most part over the land of appellees. Upon looking to the evidence found in the record, we find that its great weight is to the effect that appellants and their vendors have used as a matter of right adversely to appellees, and all others, the passway from letter “A” to the county road at £‘C” for at least fifty years, which clearly gives appellants an easement in the passway by prescription, raising the presumption of a grant. We are further of opinion that the weight of evidence strongly conduces to show that they have not obtained such right to the use of the passway opened by appellees upon their land from ££B” to ££ E”; and though it appears that they, and one or more of their vendors and even others, occasionally traveled the latter pass-way, in going to the county road, such use as was thus made of it was merely permissive. In other words, the evidence fails to show that appellants or their vendors have had. such continued, adverse use of the passway from ££ B” to ££ E” as would prevent appellees from prohibiting at any time their further use of it. Indeed, the fact that the new passway was established only ten or eleven years ago, of itself, demonstrates that appellants have not had such constant or continued use of it as would entitle them to claim it of right; for such use to confer upon them a prescriptive right to an easement therein must have continued for fifteen years adversely to the appellees.

[849]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Terry v. Boston
54 S.W.2d 909 (Court of Appeals of Kentucky (pre-1976), 1932)
Casey v. Hensley
53 S.W.2d 698 (Court of Appeals of Kentucky (pre-1976), 1932)
Farmers' Cooperative Irrigation Co. v. Alsager
277 P. 430 (Idaho Supreme Court, 1929)
Mudge v. Wagoner
151 N.E. 276 (Illinois Supreme Court, 1926)
Morgan v. Morgan
266 S.W. 35 (Court of Appeals of Kentucky, 1924)

Cite This Page — Counsel Stack

Bluebook (online)
191 S.W. 633, 173 Ky. 847, 1917 Ky. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bridwill-v-neltner-kyctapp-1917.