205 Ky. 779 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
This is a controversy over a strip of ground in the city of Henderson in the shape of a carpenter’s square, as shown in the following plot by the lines A, E, F, F. G-. C and B;
“Plaintiff further states that in the laying off and establishing said town, said Richard Henderson & Compaq, the owners in fee of the soil dedicated, established and set apart to the public use, certain portions of the ground embraced in the limits of said town, as streets and highways, and among the streets and highways so established, dedicated and set apart is one immediately on the bank of the Ohio river known and designated in said ordinance and report and on said plat as Water street. This street or highway commences at the upper end of said town and runs with the river to the lower end thereof, and embraces all the land lying between the lots fronting the river and the said river extending to low water mark. That said street, hig-hway or territory has been used and enjoyed by the public and the citizens of said town as a street and public highway and common and landing from the time of said town’s establishment hitherto. But now plaintiff states that the defendants above named have unlawfully and without right taken possession in severalty as their individual property of divers and large portions of said ground, street or territory, and have gone on to enclose and build on portions of the same, and do now and have for twelve months or more last past, unlawfully and without right held possession*781 of’ the same, withheld the sa'me from this plaintiff, and have and do refuse to surrender'and give up the same, and have and do by their said possession and occupancy, obstruct and prevent the uses to which it was dedicated.”
The land in controversy is in part land originally lying within Water street and the rest of it lies between Water street and the river. It was then in possession of Robert Clark & Company, under whom appellants claimed. The defendants, in that action, filed answer, and on July 23,1858, the following agreed judgment was entered:
“By consent of the plaintiff and of the defendants Robert Clark & Co. and John B. Burk, it is adjudged by the court herein, that the said defendants, Robert Clark & Co. and John B. Burk, are entitled to the use, possession and enjoyment of the ground and premises respectively occupied by them which lies between First and Second cross-streets above the public square and between Water street and the river for and during the period yet unexpired, mentioned in the lease to'Audubon and Blakewell, that is to say, until the 15th day of March A. D.-1915, fully to be completed and ended, and that the plaintiff is entitled to the reversion and ownership of said property at the end of said period, to-wit, on the 15th day of March, 1915. Wherefore it is further (by consent aforesaid) considered and adjudged, that the said defendants, Clark & Co. and John B. Burk, their heirs and - assigns, be permitted to hold and enjoy the possession, use and occupation of said premises respectively until said time, paying to said plaintiff in lieu of rent, the annual tax assessed thereon during said period, as other similar property in said city is by law assessed, and at the end of said time the said defendants, Robert Clark & Co. and John B. Burk, their respective representatives, heirs or assigns are to surrender up to said plaintiff or her legal successor the grounds and premses above described with all appurtenances free and clear from any claim or demand for improvements or ameliorations.”
It is insisted for appellants that the plaintiffs also set out in their petition the Audubon lease and that the
In 15 R. C. L. 643, the rule as to consent judgments is thus stated:
“Courts have the general power of entering judgment by consent of the parties, and a judgment may properly be entered by a court for the purpose of carrying out a settlement and a compromise of a suit. When made by consent, it is presumed to be made in view of the existing facts, and that these were within the knowledge of the parties. Provisions outside of the issues may be sustained and enforced, if the decree containing the same was entered by consent of all the parties, and provided they have reference to the subject matter of the litigation, and fall within the general scope of the case made by the pleadings.’’ ,
All the provisions of the judgment fall within the general scope of the case made by the pleadings. To Construe the judgment as applicable only to the lot covered by the Audubon lease would be to ignore the general scope of the case made by the pleadings and to give no
Judgment affirmed.