100 Ky. 665 | Ky. Ct. App. | 1897
delivered the opinion oe the court.
In October, 1889, the appellees, Holton and wife, filed In the Lewis Circuit Court their petition in which they sought to recover damages from appellant for an alleged wrongful entry upon appellee’s land by appellant’s construction and operation thereon of its railroad, said land being owned by the wife; and they further sought to recover for permanent and continued trespass by the appropriation of the land taken by appellant and for incidental damages to the residue of the-tract, said damages being alleged in the sum of $1,500-
Appellant admitted the entry complained of and the-construction and operation of the railroad, and pleaded justification of same by alleging that prior to the acquisition of the land in question by appellees the railroad or its vendors had acquired a written grant of the right of way over same, upon which to locate and build its railroad, from the then owner of the land and from whom appellees subsequently acquired the title, claiming such right and title under a deed from one William McLean, dated May 3, 1853.
Appellees by replies traversed all the affirmative allegations of appellant’s answer and plead and relied upon actual, continuous, adverse possession, under-color of title, of all the land sued for, for more than fifteen years prior to the commission of the acts complained of in 1887, for which the suit was brought,, it being alleged in reply that appellant’s grant of the rightof waywas obtained in 1852;thatinl854 appellant became insolvent and ceased the construction of its.
The appellant, by a rejoinder, denied the allegation of continued adverse possession on the part of those under whom appellees claimed, and allege affirmatively that in 1871 its vendee, the Kentucky & Great Eastern Railway Company, re-entered upon the right of way and held same until 1873; that in 1877 appellant took possession of said right of way, the. contract of sale being rescinded, and that in 1886 it re-entered and built and constructed the road, and denying, in substance, that appellees had been for fifteen years in the continuous adverse possession of the said right of
This case was tried before a jury, and resulted in a verdict of $700 for appellees, upon which judgment was entered, and from that judgment this appeal is prosecuted. The appellant asks a reversal of that judgment, first, because the court erred in allowing immaterial and illegal evidence to go to the jury, to which the defendant excepted; second, that the court erred to the prejudice of the defendant in refusing to permit certain legal and material testimony to go to the jury which was offered by appellant; third, that the court erred to the prejudice of the defendant in giving to the jury, upon motion of plaintiff, instructions 1, 2 and 3, to which defendant objected and excepted; fourth, that the court erred to the prejudice of the defendant in refusing to give to the jury, on motion of defendant, instructions A and B, to which defendant excepted; fifth, that the verdict is not sustained by the evidence and is against the weight of same.
We do not think that there was any material error to the prejudice of the defendant in the admission of illegal testimony or in the refusal of the court to allow proper testimony in behalf of the appellant to go to the jury. The evidence in the case is comparatively simple and short.’
In July, 1858, Wallace, master commissioner of the Kenton Circuit Court, conveyed the tract of land now owned by appellees to one John S. Nixon, including
His testimony shows that no work was ever done by the appellant upon appellee’s land under the conveyance from McClain at any time before 1886, except to survey the line and drive down some stakes, and that this would take from half an hour to an hour on plaintiff’s farm each time it was surveyed.
The deed from William McClain, dated 1853, under which appellant claimed title to the right of way, is singularly indefinite. It does not identify the property or define the location of the right of way or the extent of same with any certainty; it does not even locate the land. It would not have been possible, without the parol evidence of Childs to have identified the land of the appellee, Martha Holton, as the same land over which McClain undertook to give the right of way by his deed of 1858, and during the long period of time between May, .1853, and 1886, there is no evidence that the appellant was ever on this land exceeding three times, and then remained only long enough to survey the land and drive stakes every hundred feet. The acts and possession of appellant, so far as asserting ownership to the right of way is concerned, do not ■seem to us to have been sufficient to have given notice
“The authorities hold that such entry must be evidenced by distinct acts of ownership, and that there must be explicit declaration or an act of notorious dominion by which the claimant challenges the right of the occupant,” or, as was said by Judge Gibson in the Pennsylvania case, “The entry must bear on the face of it the unequivocal intent to resume the possession.” It has been held that it is not every entry upon the premises without permission that will disturb the adverse possession. “A man may tread upon his own soil, and still be as much out of possession of it there as elsewhere.” He must assert his claim notoriously and openly or perform some act that will reinstate him in possession before he can regain what he has lost.
It does not seem to us that the possession of the appellee of this property or that of her vendors was ever seriously challenged or disputed by appellant. Col. Childs, the engineer of the railroad company, did
The appellant raises the point that even if there had been no interruption of the possession of appellee and his vendors as shown, the evidence as to the user was not enough to bar appellant’s grant of the right of way, claiming that the substance of the evidence as to diverse user on the part of appellee and his vendors was that the right of way was within the boundary of their deeds and inside their fences, that there was no evidence of the right of way ever having been put to
It seems to us that the evidence shows that the appellee and his vendor, Willim, made the same use of-the right claimed by appellant that they did of every other part of their farm inclosed Avithin their boundary. There is no evidence of any kind to show that they ever at any time made any difference between the land claimed by appellant and the balance of the tract.
In the case cited by appellant the road had actually been constructed and was being daily operated, and there was no pretense that the right of the claimant of the property by diverse use had acquired same innocently or by purchase. That case is so distinguished from this by the facts as to bear but slight, if any, analogy, and is in conflict with the rule in this court Which has repeatedly recognized the doctrine that the right to the dominant estate, the easement, may be extinguished by permitting the owner of the servient estate to take actual adverse possession of it and to use it as his oavu for a period of fifteen years. (See the case of L. & N. R. R. Co. v. Quinn, 94 Ky., 310, and the authorities there cited.) Mere non-use will not be an abandonment of the easement if created by express grant, but if accompanied by actual adverse possession by the owners of the servient estate for the statutory
The instructions given by the court and those refused are copied and annexed .hereto, and, we think, fully and properly give to the jury the law of the case; in fact, instructions five and six are very favorable to appellant, and perceiv-ing no substantial error to the prejudice of the rights of appellant, the judgment is affirmed.
Instructions 1, 2 and 3 offered by appellees, and given by court:
“No. 1. The court instructs the jury that, although they may believe from the evidence that the defendant, in May, 1853, acquired from Wm. McClain, then the owner of the lands now claimed by the plaintiffs, a release or grant of a right of way or easement over said lands upon which to locate and construct its railroad, yet, if the jury believe from the evidence that the plaintiffs and those through whom they claim and derive title to said lands, have had the actual, continuous, uninterrupted possession of all the lands sued for in the petition, claiming the same adversely to the defendant and all others for fifteen years or more next before the entries and trespasses by defendant thereon sued for in the petition, then all right of title acquired by the defendant under the release or conveyance from McClain is tolled and taken away, and the defendant, and all claiming under it, are barred of any right or'easement in the lands described in the petition, and the full right and title thereto vested in the*679 plaintiffs; and if the jury shall believe from the evidence that defendant’s right and grant from McClain was thus tolled and barred by adverse holding in the manner aforesaid, then they will find for the plaintiffs such damages as they have sustained by the defendant’s entry, construction and maintenance of its railroad upon their lands, not exceeding in all the sum of $1,500, and the jury being confined in their assessment of such damages to the rule laid down in instruction No. 3 and governed by all the evidence as to such, damages, if any sustained.
“No. 2. The court instructs the jury that if they believe from the evidence that John S. Nixon conveyed the entire boundary of land described in plaintiff’s' petition to John P. and Thomas H. Willim on the 18th of February, 1864, and that said John P. and Thomas IT. Willim, on the 22d of April, 1874, sold and conveyed the same property to the female plaintiff, Martha Holton, and further believe from the testimony that in pursuance of such conveyances, and under color thereof, they, the said John P. and Thomas H. Willim, and the plaintiffs, W. J. and Martha Holton, entered into the actual possession of the lands so conveyed, claiming title thereto to the full extent of the boundary and title so conveyed, and that such possession of said land continued for a period of fifteen years previous to the defendant’s entry sued for, and during such period their possession was actual, Adsible and notorious, then such possession is adverse and the jury should find for the plaintiffs and determine their damages as indicated in instruction No. 3.
*680 “No. 3. The court further instructs the jury that if they find for plaintiffs as indicated in instruction No. 1 or 2, then they must find for plain tiffs the value of the land taken by the defendant for its road, and in valuing the same they must take into consideration its relative position to the entire farm of which it is a part, and its value when considered in its relation to the entire tract, which includes the actual injury to the remainder of the farm and its improvements, and every direct damage tending to diminish in value the plaintiff’s farm by reason of the use and appropriation of the strip actually taken and used by defendant in constructing and operating its road permanently thereon, not exceeding in all the sum sued for, fifteen hundred dollars, and being governed in such assessment of damages by all the evidence in the case.”
Instructions 4, 5 and 6, offered by appellant and given to the jury :
“No. 4. The jury are instructed by the grant from William McClain to the defendant, the Maysville & Big Sandy Railroad Company, said defendant acquired the right of way over the land owned by plaintiffs, and it was entitled to enter in and upon said land under said grant in 1880, and construct its railroad, unless said grant had been barred by adverse use and possession continued uninterruptedly for a. period of fifteen years prior to the time in 1880 when it entered.
“No. 5. The jury are instructed that unless they believe from all the evidence that the plaintiffs and those under whom they claimed continuously and uninter*681 ruptedly for a period of fifteen years after 1858, and before 1886, obstructed the right of defendant or those claiming or acting under them to enter upon said land for the purpose of its railroad by such open and notorious acts as were inconsistent with the rights of way granted to said company, and so open and notorious that the defendant must reasonably be considered as having had notice of them, and from them to have known that the plaintiff denied its right of way, and their occupation of the right of way Avas hostile to the right of the company to enter thereon, they will find that the grant in question is not barred by adverse use and possession.
“No. 6. The jury are instructed that the mere fact that the right of Avay in question was within the enclosure of the fences of plaintiffs, and those under whom they claim the same, after the making of the grant or before, or the use of said right of way for any purpose consistent with the right of Avay granted, are not evidence of hostile possession by the plaintiffs of the said right of way.”
Instructions 4 and 5, offered by appellees and refused by court:
“No. 4. The court further instructs the jury that the writing dated May 3, 1853, purporting to be a release from William McClain to the defendant to a right of way over his land, under which the defendant claims the right of way over plaintiff's farm, is insufficient in law to pass or convey such easement or title therein to the defe»dant, unless the jury believe from the evi*682 dence that in pursuance thereof the defendant located its road thereon and took the actual possession of the right of way so granted; and unless the jury so believe they will find for the plaintiffs, and determine their damages as indicated in instruction No. 3.
“No. 5. The court further instructs the jury that if they believe from the evidence that the plaintiffs and their vendors, John P. and Thomas H. Willim, purchased and paid for the property described in the petition without actual notice of the release made by Wm. McClain to the defendant on May 3, 1853, and further believe from the evidence that at the timé they took and acquired their title to the property the defendant was not in the possession of the right of way granted, and had, at the time they so acquired title, done nothing under the release excepting to survey the route or location of its road thereon,- then the law is for plaintiffs, and the jury will so find and assess their damages as indicated in instruction No. 3.” - —-
Instructions A and 0 offered by appellant and refused:
“A. The jury are instructed that if they believe\ from the evidence that in 1872 the defendant company or the Kentucky & Great Eastern Railroad Company, by its agents or employes, entered upon said right of way as same had been previously surveyed and located by it, and staked same off, and did so under a claim of right to the right of way, and to take possession of same, then said grant has not been barred by adverse possession, and the jury will find for defendant.
*683 “C. The jury are instructed that if they believe from all the evidence that the defendant, by its árgents and employes, in 1886, entered upon plaintiffs’ land by their permission or consent, they will find for the defendant.”