Affirming.
W.H. Wilson and J.G. Trent were adjacent landowners and rival merchants in the town of Big Clifty in Grayson county. A controversy arose between them over a passway, and litigation ensued. The circuit court adjudged a passway in favor of Trent across the northwest end of one of Wilson's lots, extending from the Trent alley to the Terry alley, and required Wilson to remove a fence constructed by him in the passway.
Wilson has prosecuted an appeal, insisting that the judgment rendered was not within the purview of the pleadings. The appeal is prosecuted upon a partial record, which does not contain the evidence, and the sole question presented is whether the pleadings support the judgment. Johns Run Coal Co. v. Little Fork Coal Co.,
"The defendant states that said strip of land which the said McGrew attempted to dedicate to the public for use as an alley runs from what is known as the Trent alley to what is now the Terry alley and that said strip of land and lands adjacent thereto, until a short time before the beginning of this action, was by this defendant and the traveling public, and for more than fifteen years next preceding the beginning of this action has been in the actual, peaceable, exclusive, open, notorious, visible, hostile, continuous, uninterrupted adverse possession of the whole of said strip of land mentioned in the petition as well as land adjacent thereto, holding the said 22 feet of ground and occupying and using it for a passway under a claim of right and ownership and adversely to plaintiffs, their immediate grantors, and to all the world."
It is argued that the passway thus described was a different one from that adjudged by the court. The surveyor's report and map are copied in the record, and indicate that the strip reserved in the McGrew deed extended along another side of Wilson's lot, and ran southerly to the new state road. It was apparently a continuation of the Trent alley to the new state road. But that easement or street is not the source of the present controversy. The pleading quoted and the judgment of the court described an easement between the lots owned by Wilson, and running from the Trent alley to the Terry alley. Terry alley is on the opposite side of Wilson's lots, and intersects the new state road at right angles. The passway described by the pleading of Trent and by the judgment of the court ran parallel with the new state road, and intersected Terry alley at a point between the lot acquired by Wilson from McGrew and his next lot to the north.
It is clear, therefore, that the pleading was sufficient to justify the judgment of the court, and it will be presumed, in the absence of a transcript of the testimony, that the proof supported the allegations of the pleading upon which the court rested its judgment. Aud v. McAvoy,
In view of the conclusion reached, it is unnecessary to determine the question discussed in briefs respecting the validity of the order granting the appeal.
The judgment is affirmed.