69 S.W.2d 333 | Ky. Ct. App. | 1934
Reversing.
The appellee, H. Haws, sued the appellants, Buck Creek Railroad Company and Norfolk Western Railway Company, alleging ownership of the portion of a right of way in Martin county, on which there is a railroad owned by the former and leased to the latter company. The plaintiff prayed for judgment for the strip of land, or, if that could not be had, for its value, placed at $2,000, and also asked $1,000 for damages to the land and its wrongful detention. Issues being formed upon both negative and affirmative defenses, a trial resulted in a verdict for $1,000 in favor of the plaintiff.
The railroad about 1 1/4 miles long was built in 1920 at a cost of about $400,000 by the Himler Coal Company from its mines at Himlerville to a bridge across Tug river connecting with the Norfolk Western Railway Company. For about 1,000 feet it passes through a tract of 16 acres, the surface of which is now owned by the appellee, Dr. Haws. This was a portion of a large body of land, the minerals in which were acquired some *205
years before by the Himler Coal Company and its predecessor in title, the Tug River Coal Salt Company. A detailed history of the situation will be found in Himler Coal Company v. Kirk,
In the case at bar, the defendants also relied upon their right under that same implied reservation of a way of necessity. The plaintiff did not plead that the particular route chosen was otherwise than necessary, so the point upon which the Kirk Case turned is not here. For the reasons given in that opinion, it must be held that the way of necessity existed over the land of the appellee. See, also, Jones on Easements, secs. 306, 313.
In this case defendants set up further a right under an express grant of record superior to plaintiff's title. Their common grantors were Lee Barrett and J.D. Barrett. We look first to the defendants' chain of title. In a compromise settlement of pending litigation, in which it appears that the administrator and heirs of Lewis Burger were claiming a lien on the Barretts' land, they, on April 11, 1906, conveyed to "Lewis Burger's heirs the exclusive rights of way to haul timber through, build railroads, tram routes, etc., to the mine and operate coal mines, together with all usual mining privileges *206 and the right to move same free from damages." By deed of March 22, 1918, and subsequent ones, the Burger heirs conveyed to Hewitt, trustee, several tracts in which the rights acquired under their deed and the provision therein quoted were included. Hewitt, trustee, by deed dated October 4, 1919, conveyed the property to the Buck Creek Coal Company. On June 24, 1919, that company had granted or leased this property for a term of 50 years to the Himler Coal Company. Thus far the right of way for a railroad was general, and without any specific route designated. As stated above, the Himler Coal Company built the railroad, and in its conveyance to the Buck Creek Railroad Company, on November 24, 1924, the right of way was particularly described as being 80 feet wide. The lease of the Buck Creek Railroad Company of this railroad, including the real estate, to the Norfolk Western Railway Company, was for a term of 50 years with the privilege of an additional 50 years. These conveyances and leases were severally recorded in due course.
The plaintiff's title began with a conveyance by the Barretts of June 18, 1909, to Jane Salmons. She conveyed it to the plaintiff on October 13, 1915. No reference is made in either deed to the easements which had been granted to the Burger heirs on April 11, 1906. The appellee would avoid the effect of this antedating start of appellant's title upon the ground that the conveyance of the Barretts to the Burger heirs of April 11, 1906, was a personal privilege and for their exclusive use, since it did not convey to them and their heirs and assigns; hence that the easement did not run with the land. He relies upon "Mannin v. Adkins,
Nor can we sustain the further challenge of the defendant's right to rely upon this conveyance upon the ground that it was not a recordable instrument, so the fact that it was recorded was not constructive notice. It clearly granted a valuable easement for the several purposes stated, and was an interest in the land unmistakably. So its record was proper and effectual. Section 500, Kentucky Statutes.
The easement, therefore, constituted a burden upon the land over and through which it ran, and the subsequent vendees took it with that burden. We conclude, therefore, that both by record title and as an implied way of necessity the appellants and their predecessors had a railroad right of way over the appellee's land.
The matter of location of that right of way is now settled by its establishment and use through acquiescence, and the indefiniteness in the original grant is immaterial. Chesapeake O. Railroad Company v. Richardson, 98 S.W. 1042, 30 Ky. Law Rep. 426; Lexington Eastern Railway Company v. Hargis,
In Fishback v. Glasgow Railway Company,
"It is not necessary for us to pass upon the question of adverse possession. The writing executed by William Dickinson to the Barren County Railroad Company, the remote vendor of appellee, was acknowledged and recorded in the county court clerk's office long before she became the owner of the land, and she knew, or at least is presumed to have known, that Dickinson had disposed of the right of way through the land of the usual width which was necessary to the proper use and operation of the railroad. As stated, the uncontradicted testimony is to the effect that the width of the strip claimed by appellee and which is in dispute was and is proper for the purpose stated. Therefore the lower court committed no error in dismissing appellant's petition, and the judgment is affirmed."
Other cases involving indefinite conveyances of railroad *209
road rights of way are: Maysville Big Sandy Railroad Company v. Ball,
It is elementary that the use of an easement must be as reasonable and as little burdensome to the servient estate as the nature of the easement and its purpose will permit. Kentucky West Virginia Power Company v. Elkhorn City Land Company,
It is submitted that the plea of 5-year statute of limitation bars the plaintiff of all right of recovery. Section 2515, Statutes, provides in part that "* * * an action for trespass on real or personal property; an action for the profits of or damages for withholding real or personal property * * * shall be commenced within five years next after the cause of action accrued." This statute is applicable to so much of the suit as claimed damages for trespass outside the reasonably *210
necessary right of way as decided herein. Chicago, St. L. N. O. Railroad Company v. Hicks,
The defendants relied upon an estoppel. The plaintiff was living close to his land, and knew all about the railroad across it. It is argued that he stood by and let the right of way be taken without making objection, and therefore, under the authority of Halbert v. Maysville, etc., Railroad Company,
*211"Where an owner, who has never received compensation for the use of his land, acquiesces in the construction of a railway over it, he is estopped from recovering the land, but may recover damages. But where a mere claimant under an adverse holding, whose grantor has been compensated for the land, so acquiesces, and knowingly permits the purchaser and legal title holder — the company — to re-enter and erect costly improvements, this acquiescence must be treated as an abandonment of the adverse claim in favor of the real owner. Such conduct would be inconsistent with the claim, and be misleading to the entering owner.
"In no aspect of the case, therefore, do we find the trial court in error, and the judgment is affirmed."
We do not think the plea of estoppel is applicable to the plaintiff's claim as to the excess width of the right of way, although the conditions may be such as to estop him from recovering the land itself. The matter of adverse possession is not involved here, for it was not until 1924, or less than 15 years before the commencement of the suit, that there was any claim to an 80-foot right of way. Under the Halbert Case, as we construe it in its applicability, if the excess beyond what was reasonably necessary for the defendants' railroad as herein determined has been actually taken and occupied with costly improvements with the plaintiff's acquiescence, to that extent he has the right to recover the value only and is estopped from recovering the land itself. It cannot be said that he or his predecessors received the compensation for such excess. There is nothing apparent in this record that estops the plaintiff from recovering either the excess strips or their value as the case may be, and for trespass thereon. Louisville, St. L. T. Railroad Company v. Stephens, 14 Ky. Law Rep. 919; Louisville, St. L. T. R. Co. v. Liebfried,
The judgment is reversed, and the case remanded for proceedings consistent with this opinion.