149 Ky. 534 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing on the First, and Affirming on the Second Appeal.
The lands of Colonel James Taylor, suburban to Newport, Kentucky, were subdivided by commissioners appointed in an action prosecuted in the Campbell Circuit Court for that purpose. A long tier of lots were laid off fronting on Grand avenue. Back of this tier and away from any street a boundary of some fourteen acres of ground was alloted to certain of bis heirs, and now by mesne conveyances has become the property of the Newport Pressed Brick & Stone Company. At the southern end of this boundary and extending from it. out to Grand avenue is a space of ground some 50 feet in width which the commissioners allotted to none of the heirs, leaving it open as a way from this boundary out to Grand avenue. A subsequent trustee of the Taylor estate, in September, 1908, conveyed this strip of ground to Mrs. Carrie B. Plummer, who thereupon built a fence across it. The brick company thereupon brought suit against
"When the commissioners came to divide the land, they used as a general basis a plat which had theretofore been made by a trustee of the Taylor property in subdividing, platting and selling the property into city lots. The plat made in the circuit court, and the division based upon it substantially followed this former subdivision plat, though there were some changes in the sizes of the lots. This prior subdivision plat made by the trustee also left open the strip of ground in controversy. It is certain from the record that this strip was to be left open as a way or street incident to the general scheme of the suburban lot subdivision.
The trial court’s opinion, in adjudging the brick company a right of way over the strip, predicated itself upon the case of Cook, et al. v. Down, 124 S. W., 838. This case was one of a farming passway, where the right allowed was merely an easement for travel; and this doubtless influenced the mind of the trial court in limiting the brick company’s right over the strip to a particular 15 foot portion of it. But in the case at bar we are not to apply merely the rules incident to a customary farm passway; for here the ground was platted and laid out as a city or suburban subdivision of a city. In such cases the rule is well stated in Schneider, etc. v. Jacob, etc., 86 Ky., 101, thus: “The principle is well' settled that where ihe owner of land lays the same.out in building lots, streets and alleys, and exhibits a map of it, which defines the lots, streets and alleys, though the streets and alleys are not yet actually opened, and sells the lot as bounded by such street or alley, this is an immediate dedication of such street or alley to the use of the purchaser and to the public.” The opinion then remarks that the principle applies primarily in the interest of the purchasers of the lots who invest their money upon the faith of the implied assurance by the seller’s map that what are shown as streets and alleys are to be streets and alleys, and are not to be the private property of the seller; and that when lots are purchased with clear
And now as to Mrs. Plummer. It is alleged in the petition and not denied in the answer that at the time of the deed to her, she liad full knowledge of the subdi-' vision and the existence of this street. Of course, therefore, she could not claim as an innocent purchaser. But independent of that fact her title and the brick company’s title both run back to the partition proceedings in the circuit court,, of which the plat on partition was a part. It was a link in her chain of title, of which she must take cognizance.
It is also argued for Mrs. Plummer that the brick company by accepting a deed to its property with a
It is also argued for her that this larger boundary owned by the brick company was not a part of the subdivision. True, it was not platted into lots; but it was allotted in the general division with the lots, lay behind them, and what would have been a dwelling lot was reserved for the street or way to it. Immediately upon the other side of it was another suburban lot subdivision of the Taylor property. This lot fairly is to be treated-as a part of the general scheme of the subdivision, and to have appurtenant to it the principles applicable to subdivision properties.
The brick company bought and owns another way to its property;, and Mrs. Plummer says, therefore, that since this strip is not a way of necessity to it, it should be denied the way over it. Not so; for its rights in this strip were its own property rights, not to be- defeated because it bought other rights. Estep v. Hammon, 104 Ky., 144.
The judgment on the brick company’s appeal is reversed with directions to the trial court to enter a judgment enjoining the keeping obstructions off of the entire strip. ' On Mrs. Plummer’s appeal the judgment, which was less against her than it should have been, is affirmed.