158 Ky. 259 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
TO HAYE AND TO HOLD the land hereby conveyed with the church or school house thereon, and to be used for educational or school purposes and as a church for all orthodox religious denominations unto the said Pryse, Blount, Martin, as trustees, and their successors in office forever, and the said Samuel Beatty for himself, heirs, executors and administrators, the aforesaid tract of land and appurtenances unto the said Pryse, Blount and Martin, and their successors in office, against the claim or claims of all and every person or persons whatsoever, doth and will forever warrant and defend the titles of these presents.”
On August 22, 1912, the then trustees of the Beattyville School District conveyed the property in question to the Louisville & Nashville Railroad Cimpany. The consideration for the conveyance was the sum of $300 in cash, and the painting, repair and removal of the buildings to another site purchased by the trustees, and the construction of.a cistern and two toilets on the new site.
Samuel Beatty died in the year 1880. His heirs, Harriett A. Lutes and others, brought this action against the defendants, Louisville & Nashville Railroad Company, and the trustees of the Beattyville School District, to recover the property conveyed by Samuel Beatty. The action was based on the fact that the conveyance was purely voluntary, and the property was donated to be used for school and religious purposes only, and having ceased to be used for' these purposes it reverted to plaintiffs as heirs of the grantor. The defendants pleaded that the Louisville & Nashville Railroad Company was authorized by law to condemn property for railroad purposes. In the year 1912 it became necessary for the railroad, in the proper discharge of its obligations to the public as a common carrier, and in order to properly and safely carry oü its railroad business and avoid annoyance to public travel, to eliminate dangerous and difficult grades and curves and to shorten the lines of its then existing railroad, to have the tract of land in controversy on which to construct and main
“WITNESSETH: That, whereas, a portion of the present right of way of the Louisville and Atlantic Division of the party of the second part, in said city, county and State, and on which it has constructed and has been operating a railroad for less than twelve months last passed, adjoins a tract or parcel of land owned by and in the possession of the parties of the first part and hereinafter described, on which has been located certain buildings which have been used for educational and school purposes and as a church for all orthodox religious denominations, and,
“Whereas, it is necessary, in the proper construction, maintenance and operation of the railroad of the party of the second part, for it to take, secure and use certain portions of the said property of the parties of the first part on which to construct, operate and maintaifi a railroad track or tracks for the proper transaction of the business for which it was created, and
*262 “Whereas, said railroad as now constructed is in close proximity to the buildings on the property of the parties of the first part and is adjacent to the yard around the same, and,
“Whereas, when such portion of the property of the parties of the first part as is necessary for the aforesaid uses of the party of the second part is taken by it, and a railroad track or tracks constructed thereon, the railroad of the party of the second part will be closer to said buildings than it now is, and,
“Whereas, on account of the present location of said railroad and of the proposed location of a track or tracks on said property of the parties of the first part, the said property of the parties of the first part has become and is undesirable to be used for educational, school and religious purposes on account of noise, smoke, cinders and danger of collisions from passing trains, and,
“Whereas, if said property is continued to be used for educational, school and religious purposes, the safety of persons and people, and especially of children attending school or church thereat, will be endangered, and,
“Whereas, the building on the said property of the parties of the first part are in need of repair, which will entail considerable expense on said school district, and,
“Whereas, the party of the second part has announced its purpose and intention of taking and securing the said property of the parties of the first part by condemnation proceedings if the same cannot be otherwise secured, and,
“Whereas, it is deemed best by the parties of the first part to secure another site to be used for educational and school purposes and as a church for all orthodox religious denominations.”
Plaintiffs’ demurrer to the answer was overruled. The demurrer was then carried back to the petition and sustained. Plaintiffs having declined to plead further, the petition was dismissed. From that judgment this appeal is prosecuted.
While it is a general rule of law that where there is a donation for a charitable purpose without a valuable consideration, the property reverts to the donor when the purposes of the donation fails, Grundy, Trustee, &c. v. Neal, &c., 147 Ky., 729; yet, under the facts of .this case, we see no reason for applying this rule. It is ad
Judgment affirmed.