Schultz v. Maxey

210 S.W.2d 950, 307 Ky. 325, 1948 Ky. LEXIS 728

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: April 30, 1948
• Status: Published

Opinion

Opinion op the Court by

Clay, Commissioner

Affirming.

This suit was brought by neighboring property owners to enjoin the obstruction by appellants of a public roadway in a Kenton County real estate subdivision. Tbe Chancellor found for appellees, and granted a permanent injunction. On tbis appeal appellants contend that tbe judgment is contrary to tbe law and evidence.

In 1941 one of tbe appellees subdivided a large tract of land known as tbe Crisler Subdivision. A plat of tbis area was made, wbicb bad marked on it a meandering roadway labeled “Winding Way Ave.” Neither tbe width of tbis road nor any calls for it were shown on tbe plat. However, tbe widths and depths of tbe lots abutting it were designated.

Sometime after tbis subdivision was laid out an auction was held on tbe premises. At that auction appellants, and some of tbe appellees, purchased lots on opposite sides of Winding Way. The plat, wbicb we have before mentioned, was exhibited to tbe prospective buyers (including appellants) at tbe time tbe lots were sold. Tbis plat showed appellants’ lots (seven in number) on tbe north side of Winding Way as having depths of from 540 to 770 feet.

There is some slight discrepancy in tbe evidence, but it was substantially proven by appellees that at tbe time appellants purchased their property Winding Way bad been visibly marked out on tbe ground through tbe subdivision. Prior to tbe auction sale a roadway approximately 50 feet in width bad been graded with a bulldozer; a 10 foot strip in tbe middle bad been covered with crushed stone and gravel; and tbe outer boundaries bad been marked with stakes.

After purchasing tbe property, tbe appellants bad a survey made. Prom a well-defined boundary on tbe north end of their lots to tbe north boundary of Winding Way as claimed by appellees, tbis survey indicated a depth shortage of approximately 90 feet on each of appellants’ lots. Appellants concluded that Winding Way was actually 90 feet further south, and they thereupon constructed a fence wbicb blocked tbe roadway as laid out on tbe ground. It was to force tbe removal of tbis fence and to establish tbe proper location of Winding Way that suit was filed by appellees.

Appellants insist that the location of tbe roadway must be established by beginning at a definitely ascer tamable point on the northern boundary of their lots and following the calls and distances in their deed. On the other hand, appellees take the position that Winding Way was a fixed visible boundary at the time appellants bought their property, and the courses and distances in appellants’ deed must yield to the roadway as an established object. We are of the opinion that appellees’ contention, upheld by the Chancellor, must prevail.

A portion of the description in appellants’ deed is as follows.

“thence South 41 degrees 30' East 600 feet to a stake on edge of Winding Way Avenue; thence along Winding Way South 20 degrees West 200 feet to a stake; thence North 45 degrees 30' West seven hundred and forty (740) feet to the beginning.”

It is obvious from the above description and the plat of the subdivision that the southeastern boundary of appellants’ property is the northern edge of Winding Way Avenue. If such roadway actually existed, it is well settled that the courses and distances in appellants’ deed must yield to it as a known and clearly defined physical object. See Dupoyster et al. v. Miller, Sr., 160 Ky. 780, 170 S. W. 182; the Fidelity Realty Company, a Corporation, v. the Flahaven Land Co., a Corporation, 193 Ky. 355, 236 S. W. 260; Jacobs et ux v. Johnson, 227 Ky. 785, 14 S. W. 2d 200; Taylor v. Collins et al., 299 Ky. 290, 185 S. W. 2d 388. The Dupoyster case, first cited above, involved a road as a boundary as in the case before us.

The proof is convincing that at the time appellants purchased their property, Winding Way Avenue had been graded, partially surfaced, and was definitely and visibly marked out on the land. This established object-must be accepted as one of the boundaries of appellants’ property. The evidence amply supports such finding by the Chancellor.

For the reasons stated, the judgment is affirmed.