The following court case is transcribed from Railroad Reports (Vol. 61 American and English Railroad Cases, New Series): A Collection of All Cases Affecting Railroads of Every Kind, Decided by the Courts of Last Resort in the United States, edited by Thomas J. Michie, Volume XXXVIII, The Michie Company, Publishers, Charlottesville, Va., 1911, pages 261-263.
It provides us with a small glimpse at the Bullitt County community then known as Chapeze or Chapeze Station. In it a resident has sued the railroad apparently to regain access to what was once a pathway that crossed the railroad right of way, but which it seems has been closed. Susan Hagan, who has brought the suit is a daughter of Adam Shepherd Chapeze who had sold the original right of way to the railroad.
Louisville & N. R. Co. v. Hagan et al.
(Court of Appeals of Kentucky, Dec. 2, 1910.)
[131 S. W. Rep. 1018.]
Easements - Prescription - Permissive Use. - Prescription presumes a grant, and if a way is used as a mere privilege, by the owner's permission, no presumption of grant arises.
Easements - Permissive Use.* - A footpath, leading through plaintiff's farm across defendant railroad company's right of way, had been used by plaintiff and others in going to the post office beyond the railroad track for 30 or 35 years, ever since the building of the railroad, but it was not shown that such use was other than permissive. Held, that the presumption was that a railroad company would not grant to others property acquired for a public use, and, since a claim by prescription assumes a grant, plaintiff could not claim the right to use the path over defendant's right of way by prescription.
Appeal from Circuit Court, Bullitt County.
Action by Susan Hagan and another against the Louisville & Nashville Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to dismiss petition.
Charles Carroll, Benjamin D. Warfield, and Chas. H. Moorman, for appellant.
Hobson, J. This action was brought by Susan Hagan, etc., against the Louisville & Nashville Railroad Company to enjoin it from obstructing a passway claimed by them, and to compel it to remove the obstruction from the passway. The defendant filed an answer controverting the allegations of the petition. Proof was taken, and on final hearing the circuit court entered a judgment in favor of the plaintiff for the relief sought. The railroad company appeals.
The facts of the case are these: The plaintiffs own a farm in Bullitt county near the railroad right of way. Their dwelling house is about 100 yards south of the right of way, and not far from Chapeze station, which is situated on the north side of the right of way. The passway in question is a footpath leading from their home across their land to the right of way. and thence across the right of way and tracks to the post office and railroad office at Chapeze. The distance from the plaintiff's home to the post office by the pathway is 700 feet. There is a road which may be used by persons on foot or in vehicles leading from the plaintiff's house to the public road, and thence to the railroad office and post office; but this road is 300 or 400 feet longer than the pathway. A. S. Chapeze, in October, 1874, owned all this land, and deeded to the railroad company the right of way. The house in which plaintiffs live was built after the railroad was built and the station established at Chapeze. A distillery was also built at that point. The hands working at the distillery boarded at this house, and the path referred to was used by them. The path has been in use ever since the building and operation of the road, 30 or 35 years. There is a fence between the right of way and the plaintiff's farm, which the path crosses. While the proof is clear that the path has been used by persons traveling on foot for the whole period, there is nothing in the evidence to show that this use was not permissive; and the plaintiffs' whole case depends upon whether they have acquired a right to use the path across the right of way by prescription.
The whole theory of prescription depends upon the presumption of a grant, and if the circumstances are such as to indicate that the pathway had been enjoyed as a mere privilege no presumption of a grant arises. In Brown's Adm'r v. L. & N. R. R Co., 97 Ky. 236, 30 S. W. 639, 17 Ky. Law Rep. 145, where, as here, there was proof of the use of the right of way by persons on foot, the court said: "We think the better doctrine is that simple acquiescence on the part of a railroad company in the use of its track in this way does not confer authority or right, nor amount to license so to use." This rule was adhered to in Thornton v. L. & N. R. R. Co.. 39 S. W. 694, 19 Ky. Law Rep. 96, and in C. & O. R. R. Co. v. Perkins. 47 S. W. 259. 20 Ky. Law Rep. 608. The question again came before the court in Thompson v. L. & N. R. R. Co., 110 Ky. 975, 63 S. W. 42, 23 Ky. Law Rep. 476. In that case the plaintiffs claimed a passway along the defendant's right of way by prescription, and showed that they had used it for 40 years. The court held that such a use created no presumption of a grant. It said: "There is not the slightest evidence that appellant or his vendors ever claimed or asserted a right to the use of the land in question, except by merely passing over it, and this use did not materially interfere with the use thereof by appellee. To create the presumption of a grant of the right of way, the circumstances attending its use must be such as to make it appear that the use was accompanied by a claim of right, or by such acts as manifest an intention to enjoy it without regard to the wishes of the railroad company."
In that case the proof for the plaintiffs was stronger than here, and the rule there announced is conclusive of this case. There is necessarily a distinction between a railroad right of way and the property of a private person as to the presumption of a grant. A private person holds his land for his private purposes. The railroad holds its right of way for public purposes. When a railroad has taken a right of way, either by condemnation or by purchase, on the ground that it is necessary for the business of the road, it is not presumed that it has granted to others property that was required for public purposes. It is a matter of common knowledge that in this country persons walk over and along railroad tracks at many points, and that the railroads permit this so long as it does not interfere with their business. But this merely permissive use of their rights of way and tracks gives such persons no legal right to a passway over them.
Judgment reversed, and cause remanded for a judgment dismissing the petition.
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