Jefferson v. Callahan , 153 Ky. 38 ( 1913 )

Opinion of the Court by

Chief Justice Hobson

Affirming.

Appellants brought this suit in the Jefferson Circuit Court against appellees to enjoin them from closing a road which they claimed by prescription, and the circuit court having dismissed their petition, they seek on this appeal to reverse the judgment.

The facts of the case are these: About the year 1876 a narrow gauge railroad was built from Louisville to Prospect, Kentucky, which ran through the farm of James Callahan, consisting of about 300 acres, four or five miles east of Louisville. The farm lay in part in the Ohio River bottom, and in part extended out on the hills. The railroad was built near the foot of the hills and a station was established, known as Callahan’s Station, on the Callahan farm, near, the road leading from his house out to the turnpike or river road. This station being within Callahan’s farm was used mainly by Callahan and his tenants, and persons going to or from their houses. The trains regularly stopped at Callahan’s Station, and vehicles met the .trains there. Callahan opened a road known as the Mocking Bird Valley Road, which crossed the railroad 376 feet west of Callahan’s Station. This road was opened on his farm to lead to a tenant’s house, and for the use of the farm. Thus things stood until about the year 1899, when Callahan sold to one Gilmoui the property which is now owned by Jefferson. Giimour in the deed from Callahan was given the right to use the Callahan road leading from his house out to the turnpike. When Giimour bought, a road had been made leading from the station along the line of the railroad down to the Mocking Bird Valley road, and he, from the time he bought the property in 1899, used this road when he needed it. The Jeffersons, after they bought from Gilmour, continued to use it until it was closed by the Callahins, when this suit followed. About five years ago, the county made the road known as Mocking Bird Valley road a county highway, from the river road to the Brownsboro pike, and after this was done, the electric railway, which had become the owner of the narrow gauge railroad, moved the station from its old position on the Callahan road, 376 feet west to the Mocking Bird Valley road, so that the station would be on the public highway, and since this has been done, Jefferson needs the road running from the old station to Mocking Bird Valley road to get to and from the station in a vehicle; The situation is shown on the accompanying map which we take from appellant’s brief:

As will be seen,- the road in controversy is 376 feet long. Jefferson can go from the station by going down the Mocking Bird Valley road to the river road, and then up the river road 376 feet to the iron gate, and then up the Callahan road to his house, he having- a right to the Callahan road under his deed. But this makes him go a half mile out of his way, as it is thirteen hundred feet from the car line to the river ro-ad. "We have held in a number of cases that where the public has used for fifteen years or more a road -without let or hindrance, and apparently as a right the burden of proof is upon the property owner to show that the use was permissive; but we have also steadily held that where the use was permissive, no prescriptive right to it is acquired, although it may have been used fifteen years .or more by the public. (Conyers v. Scott, 94 Ky., 123; Downing v. Benedict, 147 Ky., 8; Cahill v. Mangold, 151 Ky., 156; Driskill v. Morehead, 147 Ky., 107; Fightmaster v. Taylor, 147 Ky., 469.)

We have read the record with great care; and reach the conclusion that the chancellor’s judgment is supported by the weight of the evidence. The great- weight of the evidence is to the effect that this road leading from the Callahan road to the Mocking Bird Valley road .was- opened by the Callahans for farm purposes, and that its use by the public was purely permissive. At the time the road was opened the Mocking Bird Valley road was also a mere farm road of the Callahans. The road crossed a creek and the bridge occasionally washed out. At one time it remained out nearly two years. The bridge was replaced by the Callahans for the convenience of the farm. The road was used primarily only by the Callahans and their tenants for many years, and ye do not think that there was any adverse use of the road by any one certainly previous to the Gilmour purchase. Less than fifteen years has elapsed since that, and under all the facts we. cannot disturb the chancellor’s finding.

There was such slight use by the public of the road in dispute previous to 1899 that it may very reasonably be concluded that the use was permissive. The fact is, there was little or no reason for the public to use this road until the Mocking Bird Valley road was made a county highway, and the station was moved from its old position to the county road. Jefferson himself had little use for it until then. This all occurred within the last five or six years. He has a station called G-ilmour which is only some 200 feet from his house. But'he can only reach that station on foot, as the hill is very steep, and this controversy is due entirely to the change of conditions brought about in the last five or- six years.

Judgment affirmed.