94 Ky. 408 | Ky. Ct. App. | 1893
delivered tiie opinion or the court.
The appellee conveyed to the appellant a right of" way across his land for its railroad bed. The right of way was by specific boundary, that had been previously surveyed and staked off. The appellee seeks-to recover the possession of the strip of ground upon which the appellant constructed its railroad bed, because, as it is alleged, the appellant, without appellee’s consent and against his protest, constructed said track upon other ground than that conveyed to him. The appellant contends that it constructed its bed and track on the ground conveyed to it. The jury found that the appellant had not constructed its road-bed upon the ground conveyed to it. The court’s instruction upon the subject of the construction of the road-bed is correct. The appellant did not attempt to deny that the right of way had been staked off before the conveyance was made, and that the appellant built its bed upon other land against the appellee’s protest, until after the trial had begun. The court then refused to allow it to file the denial.. We can not say that the court, Under the circumstances, abused its discretion.
The appellant also objects to the court’s action in sustaining a demurrer to its amendment that set up the plea of estoppel, consisting, as is alleged, in the-fact that the appellee knew and acquiesced in the appellant’s building its road-bed on its line of road. If the plea was intended as a confession and avoidance, the appellant is confronted with the fact that it had already admitted, which stood as true, that the appellant had built its road-bed against the pro
The appellant can yet have its road-bed condemned as a right of way, and the court has the right to suspend the writ of possession for a reasonable time in order for it to take that proceeding, if it applies for it.
The judgment is affirmed.
