Citation Numbers: 184 Ky. 11
Judges: Sampson
Filed Date: 4/22/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
In 1900 Taylor Barcl died the owner of a large farm, situated partly on the north and partly on the south of the state road in Fulton county. He left surviving him a widow and several children, among whom the lands were afterwards allotted by agreement. The dower assigned to the widow was on the south side of the state road and contained about 70 acres. Adjoining this dower tract six lots were laid off and assigned to six children. Lot No. 4 adjoined the state road, but lots Nos. 5, 6, 7, 8 and 9 were off of any traveled way, and the heirs agreed among themselves that a passway should be established from lot No. 9, running with the west line of the dower tract and over lots Nos. 8, 7, 6, 5 and 4 to the state road, to give an outlet for the lots off of the traveled way. 'This passway was 16% feet wide and about 300 yards long. The heirs as well as the widow took possession of the tracts allotted to them. Afterwards S. A. Bard purchased four of the lots adjoining his tract, and _ J. F. Bard, who owned lot No. 9, purchased from the heirs
‘ ‘ This agreement entered in this day by and between J. F. Bard and W. II. Batsell of Fulton Co., Ky., agreed 1st: that the lane or passway running between our respective farms may be closed by placing one or more gates across same for the convenience and use of either party.
“2nd: It is further agreed that said gates must be removed at the request of either party.
“This agreement entered into this April 22, 1914. Witness our hands.
“W H. Batsell,
“J. F. Bard.
“Witness: W. L. Hampton.”
Shortly after the execution of this writing J. F. Bard demanded that Batsell remove the gates from across the passway, and Batsell declining to do so Bard instituted this action in the Fulton circuit court against Batsell and wife to perpetually enjoin and restrain them^ from obstructing the passway, and from erecting or" maintaining gates over and across the samp, and to restrain and enjoin the Batsells from using the passway as a stock lot or hog pen, and from otherwise using it except as a walk or driveway. In the petition it was alleg
The case was prepared by the taking of much evidence concerning the origin of the passway, its use and the maintenance of gates as well as concerning the execution of the agreement relied on by appellant. The cause being submitted, the chancellor dismissed plaintiff’s petition absolutely, and adjudged Batsells, defendants, the right to maintain two gates across the passway. From this judgment Bard appeals.
The deeds under which appellant Bard claims the dower tract and lot No. 9, contains no reference to the right-of-way or road in controversy, but it is admitted that the heirs who were the original owners laid out and agreed upon the passway at the time the lands were subdivided; but appellees insist that each of the heirs to whom the lands were first allotted, reserved and had the right to erect and maintain as many gates over and across the passway as to them appeared necessary, and as grantees of said persons, appellees contend that they also are entitled to maintain one or more gates over and across the passway. Appellant insists that even though appellees’ grantors had the right to maintain such gates, yet appellees surrendered such right” by the execution of the agreement above quoted.
It can not be denied that the owners of lots Nos. 4, 5, 6, 7, 8 and 9 had the right to erect, and maintain gates across the passway. In fact, the passway was over ajjd across the lots allotted to these persons, and they did not surrender the lands, but only an easement therein to be used as a passway. Whatever right, if any, appellant Bard had to compel the discontinuance of gates across the passway, he acquired by reason of the agreement aforesaid. But this agreement" it is contended by appellee is invalid; (1) because without consideration; and (2) because unilateral, So far as the record discloses there was no sufficient consideration for the execution of the agreement. But we think there is a better reason why this agreement must be rejected than either
Judgment affirmed.