138 Ky. 437 | Ky. Ct. App. | 1910
Opinion op the Court by
Revers-' ing.
Appellant filed a petition in the Oldham circuit court, in which it alleged its own corporate existence and right to purchase other railroad corporations. It then alleged the incorporation of the Louisville & Frankfort Railroad Company and the powers given it hy its charter. It also made like allegations with reference to the Lexington & Frankfort Railroad Company and the merger of these two roads as authorized by an act of the Legislature, under the name of the Louisville, Cincinnati & Lexington Railroad Company, and then alleged that it was the owner of the last-named corporation by purchase. It averred that in the acts incorporating the before-named roads the Legislature authorized them to purchase or condemn, for the purpose of constructing a road, a right of way through the counties it passed, 66 feet wide; that by reason of its purchase of the aforesaid roads it became the owner of this right of way and all other rights and privileges given them under their charters, and continued as follows: “That, by reason of the purchase by it of the said Louisville & Lexington Railway, it became the owner and possessor of a certain right of way which is now in the town of La Grange, Oldham county, Ky., 66 feet in width, which is 33 feet from the center line of its main track on
Appellant instituted this action in equity seeking a mandatory injunction against appellee compelling him to remove a fence and surrender to appellant the ground inclosed by it. Clearly, the allegations of the
Appellee’s-counsel-contend that the court-did not err in dismissing the petition for the reason that the land in contest was not described as required by section 125, Civ. Code Prac. "We are of the opinion that the description is sufficient. The strip claimed is 800 feet in length and 33 feet wide measured from a point in the center of the main track, and runs parallel with the track. The petition fixes the beginning of the 800-foot line at a line between appellee and L. GL Lambert and ending in Mosly’s line.
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.