110 Ky. 691 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
This litigation involves the question of the ownership of that portion of Brighton street lying between Eleventh and Twelfth streets, in the city of Newport. Appellee claims it as a part of its turnpike road, while appellant .says that it is one of the public streets of Newport, and that appellee has no right or title thereto. The appellee began the litigation by the institution of this suit in the Campbell Circuit Court on the 4th day of August, 1899, against the appellant, in which it alleges that in the year 1851 it was incorporated and empowered
A brief history of the facts connected with the ownership of that portion of Brighton street in contest-is necessary for a proper understanding of the legal question -raised upon the appeal. Previous io his death, in 1849, Gen. James Taylor owned all the land lying between Ninth and Thirteenth streets in the city of Newport, including the land now occupied by Brighton street between Eleventh and Twelfth. At that date the city limits did not extend beyond what is now known- as “Ninth Street.” In the seventh section of his will, he devised this tract of land to his three daughters, Keturah, Anne, and Jane, directing that it should be equally divided between them, and, to this end, should be laid off into town lots-, and sold and conveyed in fee, -or put on perpetual lease, as they may choose; and, t’o effect this object the ¡circuit court was authorized to appoint a, trustee to sell and convey, or lease perpetually, the ground. Subsequent to the death of Taylor, a suit was brought for the partition of the land among his heirs. In this proceeding, an order was entered in 1868 directing a division of the land into streets, alleys, and lots, and a division was made pursuant thereto, and confirmed on the 9th of Mayq 1809. A copy of the plat was filed in the county clerk’s office, and was known as-the “Trustees’ Addition to the City of Newport.” After this subdivision was made, the trustees of the estate of Taylor executed deeds to the heirs, which referred to
Appellee could only have acquired the interest asserted in Brighton street in one of two ways: First, by direct grant from the idevisees of Gen. Taylor previous to its dedication as a public street in 1869 by the proceeding in the case of Thornton against Harris. It does mot claim to have acquired the alleged right in this way, tout rests its whole contention upon the claim of a possessory or prescriptive title. Tio entitle appellee to an easement by prescription, it musí: show that it was in the open, adverse, peaceable continuous, and exclusive! use of the part of Brighton street in controversy ,in this action for a period of at least fifteen years before the institution of this suit, and that this use began before its dedication in 1869. It is true that it is claimed by appellee that there was no dedication of Brighton street by the subdivision
Petition for rehearing by appellee overruled.