Summary
affirming finding of no easement over passway where use of passway was primarily by family members and tenants prior to conveyance by children of original owner
Summary of this case from Cole v. GilvinOpinion
March 10, 1942.
Appeal from Knott Circuit Court.
Henry Stephens, Jr., Judge.
Carl D. Perkins, J.C. Burnette and D.H. Hall for appellant.
Clark Pratt for appellees.
Affirming.
Fred Bowens sued Richmond Amburgey and wife and Brownlow Hall and wife seeking to enjoin them from obstructing a passway and for judgment for damages. He appeals from an adverse judgment.
Bowens owns 75 acres of land a quarter of a mile up Gum Hollow from a highway. A branch runs down the hollow and empties into Breeding Creek at or near the highway. On the left-hand side of the branch Hall owns three acres next to Bowens and F.M. Breeding owns the land between Hall and the highway. On the righthand side Bowens' land extends farther down the branch to the property of Amburgey, which adjoins the highway. All of this land and much more belonged to G.M. Breeding who, in 1919, divided it among his children, including F.M. Breeding and Mrs. Amburgey. In October, 1936, F.M. Breeding deeded the 75 acres to Bowens, and in December, 1936, the three acres to Hall. Bowens undertook to prove a passway by prescription over Hall's parcel and out to the highway. Bowens had hauled timber over the claimed roadway for Breeding from the tract which he later bought. The better evidence, it seems to us, is that whatever travel there had been along this way was by members of the Breeding family or their tenants or employees. Bowens has two tenants living on the land now.
All of Hall's three acres is mountain or hillside except a quarter of an acre along the branch and that is only 30 to 50 feet wide at the widest points. The claimed passway runs about the middle of it. Hall and his father-in-law, Amburgey, started building a log house on this little flat. The suit was to have them remove that as an obstruction to the passway. After it was filed there was some sort of proceeding, not fully disclosed, in the county court respecting this roadway. The County Judge and two others appointed by him laid off another roadway, which seems to be on the other side of the creek and on Bowens' own land opposite Hall's. The new roadway parallels the old one and the greatest distance from it is not over 30 feet. Bowens, however, insists that this new road is not as convenient as the old as it requires the crossing of the branch and, at least for a short space, is "mushy" and without foundation. He insists on having the old way through Hall's little level parcel, which is the only place possible for him to build a home upon.
It may be said that the evidence as to the existence of this passway is conflicting. The circuit judge personally viewed the situation and reached the conclusion from that inspection and the record that the plaintiff does not have any easement over Hall's parcel. We have reached the same conclusion from the reading of the record.
The clerk's transcript is condemned. Rule III, Section 5 of this Court provides:
"The pleadings must be copied in the order in which they were filed or tendered; the orders and judgments in the order of their entry. When, by any order, a pleading or other paper is filed, the paper so filed will be copied immediately after the order filing it."
The first page of this record is a copy of a notice to take depositions. It is immediately followed by a number of orders relating to the pleadings. Then come two pages of the petition, followed by 18 pages of affidavits submitted on a motion for a temporary injunction, and seven pages of deeds; then comes the answer, in the middle of which is copied the rest of the petition. This disorder is typical of the entire record. Apparently the clerk gathered up the loose sheets and fastened them together without any effort to put them in order. The depositions are so copied as to make it difficult to tell when that of one witness ends and another begins. Such negligence is inexcusable.
The taxation of the clerk's fees for the transcript is of 130 pages at 30 cents a page for the original, 15 cents for one carbon, and 7 1/2 cents for another, making a total of 52 1/2 cents a page, which, with 50 cents for a certificate, amounts to $68.75. Section 1720 of the Statutes fixes the clerk's fee for copying a record for appeal at 1 cent for each ten words. It is the custom, however, to tax the fees at so much per page on the assumption that the pages will average the proper number of words. On some of the pages of this record there are only one, two or three lines containing from 9 to 40 words. Rule III, Section 17, of this Court, requires the clerk to endorse on the transcript his fees for preparing it; but the taxation as costs of the fees for carbon copies of the record is not authorized. That is a matter of contract between the clerk and the party who desires the copy. The taxation of 130 pages at 30 cents a page in this case is grossly excessive. Upon motion of the party required to pay the fees it should be retaxed. Whatever the correct fee may be, we direct that $10 be deducted as a penalty for the gross violation of the rule of this court above stated.
Judgment affirmed.