McCloskey v. Doherty

97 Ky. 300 | Ky. Ct. App. | 1895

CHIEF JUSTICE PRYOR

delivered ti-ie oeikion oe the court.

In tlie month of September, of the year 1888, the Rt. Rev. William George McCloskey, Roman Catholic Bishop of Louisville, granted and conveyed to John G. Mattingly & Sons, of Louisville, a right of way over certain lands, for the period of fifty years, for the construction and operation of a railroad for the private use of the firm, to run from their place of business to and from the railroad. The lessees transferred the lease of this right of way to B. I). Mattingly and Charles Doherty. John G. Mattingly, etc. failed, and the right of way was sold under a judgment of the Louisville Chancery Court, and purchased by the appellee'Doherty, or at least the appellee claims to have derived title under that purchase. The appellant was not a party to the action in which that right of way was sold, nor does it appear that he had any knowledge of what had been sold under the judgment. The lease describes the location of this road, and specifies the exact boundary of the right of way, and this controversy has originated from the failure of the appellee, or the lessees of the appellant, to construct its road on the right of way as agreed upon by the parties to the lease. It is conceded, or if not the testimony shows, the lessees paid no regard to the boundary specified in the lease, but made such a divergence from the main route or boundary defined as to sever a part of the appellant’s land from the principal tract, and in such a manner as to render that part of it cut off valueless, and, as appellant claims, to the great injury of his possession.

This action was instituted to quiet the title of the appellant, in which it is alleged, the appellee is continuously using this right of way with his cars running over the appellant’s land at a place not authorized by the lease, and an injunction sought to prevent this contimied use of the premises, and to so reform the lease as to locate the road where the parties agreed it should be placed.

That part of the petition asking for a reformation of the lease was withdrawn, and the case was heard upon the issue, as to the proper location of the appellee’s right of way under the lease, and his right to use it as constructed, upon the ground of acquiescence on the part of the grantor, and the right of the appellee to hold it by reason of the sale made under the order of the chancellor. It may be also said the appellee placed in issue the title of the appellant as well as the possession, and denied the commission of any trespass on his premises.

This land, as appears from the record, belongs to the diocese of which the appellant, Rt. Rev. William George Mc-Oloskey, is bishop, and has been held by him and the bishops preceding him for many years. Prior to April, 1888, the title was vested in the “Rt. Rev. William George McCloskey, Roman Catholic Bishop of Louisville, and his successors in office,” at which time the style of this corporation was changed by an act of the legislature, to that of “Rt. Rev. William George McCloskey, Romlan Catholic Bishop of Louisville,” omiftingtlie words,“and his successorsin office,” and it is now contended that as the name of the corporation was changed, it was necessary, in order to pass the title, that a conveyance should have been made from the one corporation to the other, as the legislature had no power to divest one of title in that mode. We think it manifest that a mere change in the corporate name is not a divestiture of title, or such a change as would require a regular transfer of title to property, whether real.or personal, and the last named corporation being the same as the first, and held for like purposes and by the same person, such an objection is no obstacle to the recovery. Besides, it appears that the appellee, or his vendor, contracted with the Rt. Rev. 'William George McCloskey in his corporate name, and acquired the right of entry and possession under this title, and is estopped from denying the manner of his holding. This right of way was car vedi our of the tract of land then claimed and in the possession of this corporation, and the entry of the appellee was under this title.

It is true if the land on which the alleged wrongful entry was made was not in the possession of the appellant or his tenants, or belonged to another,, the appellee could to that extent question the title, but there is no effort to show title in another, and the appellant by himself and tenants, and those under whom he claims, has shown an actual and continued possession with the claim of ownership for more* than thirty years, with this land, of which the right of way forms'a part, enclosed by a fence since the year 1862, and with this character of title it is needless to examine the evidences of paper title found in the record. In fact, the appellant shows an actual continued possession by himself and tenants for about eightteen years prior to the bringing of the action.

It is again contended that the appellant having an adequate remedy at law for this wrongful entry, a court of equity should not take jurisdiction to quiet the title by reason alone of the trespass upon the part of the appellee.

It is a well settled rule of law that for a mere trespass where the recovery in damages will fully compensate for the wrong a court of equity will not interfere, but equally as well settled, that where the trespasses are continual and must result in a multiplicity of suits, a court of equity will interfere, and, particularly, when the wrong complained of is the assertion of a right not only hostile to the claim of the real owner, but that by its exercise will give the wrongdoer, by the user and claim, such a right as will deprive him (the real owner) of title. (Poirier v. Fetter, 20 Kan., 47; Musselman v. Marquis, 1 Bush, 463; Peak v. Hayden, 3 Bush, 125.)

The acts of the appellee in this case not only constitute a continuing trespass, but the lease under which he claims gives him the possession under the grant for the period of fifty jmars, and the continued use of that part of the land upon which he had no right to enter would, in a much less period of time;, give to the appellee an easement of which he could not be deprived, and to prevent such a result the chancellor will interfere by injunction. (Murphy v. Lincoln, 63 Vt., 278; 1 High on Injunctions, 702.)

It is again insisted that as the; appellant’s tenants were in the actual possession, tin action should be in thpir names. While for a mere entry on the premises without any injury to the freehold such would be the rule, the statute provides “that the owner of land may maintain the appropriate action to recover damages for any trespass or injury committed thereon, or to prevent or restrain any trespass or other injury thereto or thereon, notwithstanding such owner .may not have the actual possession at the time of the commission of the trespass.” (Ky. Stats., section 23G1.)

We find no element of estoppel in this case either by acquiescence on the part of the appellant or by any subsequent contract, but on the contrary the way or its boundary was so specifically defined -as not to admit of any doubt as to the place for the construction of the railway, and the proof shows there was no excuse to so far depart from the location of this route as to leave it several hundred feet without the consent of the appellant.

There is no pretense that any consent was obtained to this change of location, or that the appellant, or his agent, Father Bouchet, knew of the construction of this way on a different route than that provided in the lease. Some testimony was introduced showing that Bouchet, the agent, had, at one time, taken a buggy ride in the vicinity of the road, but his testimony is that he never knew of this wrongful location of the road until about six months before the action was instituted, ,and that ms soon as he discovered the wrongful appropriation of the land, he made known his objection, and much time seems to have been consumed by both parties in a fruitless effort to adjust the matter in dispute.

The title acquired by the purchase under the judgment of the chancellor gave to the appellee no better title than the lessees had, and while it may be a source of great inconvenience to the appellee to disturb him in his possession, the title to the land in dispute being in the appellant, tbe appellee must surrender it, as neither the letter of the lease or a liberal construction of its terms will authorize the chancellor to adjudge that he can hold the possession against the consent of the real owner. It results therefore that his title should be quieted, and the appellee required to remove his track and locate it on the ground designated in the lease, or so construct it as to keep himself within the terms of the grant.

Judgment reversed and cause remanded for proceedings consistent with this opinion.