Dause v. Wilkerson

Affirming.

The appellants instituted this action to enjoin the appellees from trespassing on a narrow strip of ground lying on the south side of Highway 80 in Casey County. Both parties operate stores in a small community where the land in question is located, and the appellees have been crossing the strip in dispute to reach their store building and residence. The strip is 24 feet in width at one end and runs to a point some 50 feet down the highway. Apparently, it was cut off from the 24 acre farm of the appellants on the north side of the highway when the road was built about 1933. The evidence shows clearly that for more than 30 years the public has been using the passway in question, and there is some evidence showing that an old roadway had once followed its course. The position of the appellants is that the use about which they raised no question from the time they purchased their farm in 1933 until last year was permissive. On the other hand, their predecessor in title, who had been in the vicinity for approximately 30 years, said he never made any objection to persons traveling upon the land. Several other witnesses testified as to the general use of the way by the public. There was no evidence bearing on the question of permissive use other than that of the appellants. They seem to have raised no question about the use of the way until the appellees began putting some gravel on it. After reviewing all the evidence and visiting the premises the chancellor dismissed the appellants' petition.

We have frequently pointed out that, where we have no more than a doubt as to the correctness of the chancellor's ruling, and here we have none, we will follow it. Furthermore, as pointed out in the case of Roberts v. Burkhart, 290 Ky. 136,160 S.W.2d 644, we give added weight to the chancellor's ruling when he visits the premises and fully apprises himself of the circumstances surrounding the dispute between the parties.

Judgment affirmed.