Phelps v. Fitch

CULLEN, Commissioner.

This appeal involves the question of whether the appellee Troy Fitch is entitled to use a passway across the lands of the appellants John R. Phelps and Ethel Phelps, for the purpose of transporting coal from a mine. The judgment of the lower court dismissed the petition of the Phelpses, in which they had sought either compensation for the use of the passway, or an injunction against its use.

Prior to 1905, James C. Preston had owned a tract of land adjoining a county road, in Johnson County. In a division of this tract after his death, one of his heirs, a predecessor in…