147 Ky. 592 | Ky. Ct. App. | 1912
Affirming.
Mrs. Margaret Curran, the widow, and Charles Cur-ran, John Curran, Alice Curran, Nellie Curran, Anna Bell Curran and Margaret A. Curran, the only children and heirs of John Curran, deceased, filed this action in the court below, seeking to recover from the city of Louisville certain river-front real estate, and back rents on it. They set up, in substance, that in 1867 the city, in an action against their father, John Curran, had condemned the property for wharf purposes and a city basin; that .the city acquired no right to use the property for any other purpose; that it had never used or attempted to make such use of the property; that its rights in the property for that purpose had been forfeited (a) because the city, on or about May 10, 1888, declared its intention to sell or convey the property to the Commissioners, of the Sinking Fund of the City of Louisville, and would have carried out its purpose had it not been restrained by injunction from so doing; (b) because the city for many years had leased the property to railroad companies, and had permitted the erection of warehouses and other buildings on it, permanent in character, so that it had become impossible ever to use it for wharf or basin purposes; and (c) because there had been built on the north side of the lots and between them and the river a stone wall-15 feet above the level of low water, so that it was physically impossible to devote the property to the purposes for which it was condemned. They, therefore, charged that the easement gained by the condemnation proceedings was at an end, and that they were entitled to the property.
John Curran brought in 1879 an action similar to this, to recover the same property. He lost, and appealed to this court, where the judgment was affirmed. Curran vs. City of Louisville, 83 Ky., 628. At that time only twelve years had elapsed without use for wharf or basin purposes; and that was made one of the grounds of affirmance. But the opinion went further. It said:
“The right to use in such a case is not extinguished by mere disuse. There must be something more than this. There must be some act upon the part of the owner of the land or the servient estate inconsistent with the existence of the easement or dominant estate.”
This brings us to consider plaintiffs’ points (a) and (b) above, in connection with the quotation made of the
Nor do we find (b, supra) that the leasehold granted by the city for railroad operations was any abandonment or surrender of the city’s right to use the property for the purposes for which it had been condemned. The lease in existence at the time of the preparation of this case provides in express terms that the railroad use of the property is subject to the city’s right to use same at any time as a wharf, basin or landing, and that whenever the city should determine to so use it the railroad should immediately surrender it. Instead, therefore, of being an evidence of an abandonment by the city of the property for wharf or basin purposes the lease is an evidence of the fact that the city yet expects to so use it, or at least has so kept the status as that it can do so whenever it desires.
The argument (c, supra) that the Federal government’s wall of masonry between this property and the river makes it impossible to use the property for wharf or basin purposes does not appeal very strongly to us. Undoubtedly the same power that put the wall there could remove it. The channel on which this property abuts is maintained as one of the inland waterways of. the Union and it is not to be supposed otherwise than that the Federal Grovernment from time to time as the needs of commerce demand will aid by its structures, rather than retard, commerce upon its navigable streams.
The plaintiffs’ petition alleges that the property was
The 'judgment is affirmed.