92 Ky. 407 | Ky. Ct. App. | 1891
delivered the opinion oe the court.
• The appellees own certain land in Daveiss county that, abuts on a public highway, and by virtue of that fact they own that part of said highway upon which the
The appellees were, at the time the appellant entered upon said land, the owners of it, which ownership was servient to the public right of way; but they were never divested of the right to the soil, but only to the surface use for the benefit of the traveling public alone; but, as said, the fee remained in the appellees, and whenever the right to the use of the surface ceased the right to said use reverted to the appellees, and they at all times had the right to the use of the soil in any way that suited themselves, if not inconsistent with the right to the surface use by the traveling public. And they had the right to take any appropriate action against any person or corporation to prevent their interference with their right to the soil or its use, and to recover the land occupied by the highway from any person or corporation that, without right, had seized it or appropriated it to their own permanent use, unless the corporation claiming the right was empowered to excise it by specific legislative grant or by a necessarily implied power resulting from the specific terms of the grant.
The Supreme Court of Pennsylvania, in the case of Phillips v. Dunkirk, Warren and Pittsburgh R. Co., 78 Pa. St., 180, is so clear and explicit upon the very subject here involved, and so well sustained by the authorities, we make the following quotation from it as fully expressing our views: “ The land of the plaintiff was sub
The judgment is affirmed.