South Covington & C. St. Ry. Co. v. Newport L. & A. Turnpike Co.

Opinion of the court by JUDGE BURNAM 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 — 696 — to construct and operate a turnpike road from the southern corporation line of Newport, which was then Ninth street, up the valley -of the Licking river, and that in the year 1S69 it constructed its road from Ninth street up what is known as “Brighton Street ” and had continuously from that date kept this part of its road in repair, and charged toll thereon. And it further alleges that that portion of Brighton street lying between Eleventh and' Twelfth streets, which was a part of its road, had been obstructed by -appellant, without its consent, by the laying of railroad tracks and the erection of poles and wires, for the purpose of operating its street cars and conducting them into its car barn on the corner of Eleventh and Brighton streets, and prayed for a mandatory injunction requiring the defendant to remove all these tracks, poles, an'd wires from its road. The defendant in the court below, and the appellant -here, filed an answer in which it denies— First, that the plaintiff had any title to, interest in,” or easement -over Brighton street from Eleventh to Twelfth street or that it or its predecessors either now or bad ever operated a turnpike road over that part of Brighton ■street from the intersection of Ninth to Twelfth street, ■or that the turnpike included any part of Brighton (street, in the city of Newport, or that it had obstructed the street by the construction of its tracks therein, and the erection of the poles and wires complained of. It further alleges that Brighton is a public street of the city of Newport, and that the city .council has complete control over it, and that, by an ordinance regularly passed by the city-council, it was authorized and permitted to lay its tracks, and erect the poles and wires complained of, for the purpose of making connection with its car barn situated and fronting upon Brighton - street, south of Eleventh, before — 697 — the institution of this suit. Upon the final submission of the suit, the circuit judge granted a mandatory injunction requiring appellant within twenty days to remove from Brighton street all of its tracks, poles, and overhead wires. The mandatory injunction was suspended by a judge of this court and the cause is now before us for decision upon its merits. 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 — 698 — the plat and to Brighton street as shown thereon and lots in this addition were sold and conveyed by the devisees, referring to this plat, and calling for the streets dedicated thereby. Before this subdivision in 1868, the turnpike road of appellee had only been constructed to the southern boundary of this'tract of land. There seems to have been a sort of mud road from the southwest corner of Twelfth and Lowell streets to the northeast of Eleventh and Brighton; and from this point travelers •scattered over the common at will, entering the city of Newport at different places along its southern boundary. After its subdivision into lots, the turnpike company, for the first time, in 1869, did some grading along what is now* known as “Brighton. Street,” and caused cinders collected from a neighboring factory to be spread over the surface of the street from Ninth to Twelfth street, and since that time the bulk of the travel from the turnpike road has been confined to the use of Brighton street. 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 — 699 — under the judgment of the Campbell Circuit Court, for the reason that the m,ap of that subdivision was not recorded, and for the further reason that the addition was not formally accepted as a part of the city of Newport by the city authorities, and for the additional reason that at the time of the subdivision it was not included •in the corporate limits of the city. The law' is well settled that appellee could not have acquired an easement by prescription in a dedicated street by the mere use thereof by the public as a highway, and it wholly failed to prove the assertion of any acts of ownership prior to 1869, and it could not do so subsequent to that time. The testimony of the witnesses Graf, Fitzsimmons, Schneider, and Easier showed that, prior to the subdivision in 1869.. the turnpike company had only constructed its road to a point north of what is now known as “'Twelfth Street,” and that from the northern terminus travelers over their road scattered over the common until Brighton street was laid out in 1S69 and that then, for the first time, they attempted to establish their road down Brighton street by doing some good work in the way of grading and covering it with cinders. It is wholly immaterial that the map of the subdivision was not recorded. The law at that time did not require it; nor was it necessary that there should have been a formal acceptance of the street by the city of Newport. Indeed, they could not have done so at that time, as it was not included within its corporate limits. In the case of Davis v. City of Louisville, 4 Ky. Law Rep., 721, this court said, viz.: “When the owner of land, adjoin ing the city of Louisville recorded a map thereof, laying it off into lots and streets, with the intention of dedicating the streets to the city of Louisville, and sold lots calling for the streets as boundaries, there was a dedication, al — 700 — though at the time the map was recorded the territory embraced therein was mot a part of the, city.” It also appears that the corporate limits of Newport were extended so as to include this portion of Brighton street in 1872; and Elliott, Roads & S. p_. 116, says: “Where an amended charter is accepted which adds municipal territory previously laid out and platted, there is an implied acceptance of the streets and alleys designated on the plat.” Besides, on the 39th of June, 1890, the city council, by ordinance, ordered the original construction of all of Brighton street between Tenth and Twelfth, by .grading, curbing-paving, laving crossings, etc.; and this original construction was made at the expense of the abutting property owners, without protest from appellee. “The law is well settled that a turnpike can not be improved at the expense of adjoining land owners, but the landowners may, by- suffering the work to proceed without objection estop themselves from denying that the way is a street of the city.” See Elliott, Roads & S. p. 60, and authorities there cited. The extension of the city limits in 1872, and the original construction of Brighton street in 1890, are sufficient evidence of the acceptance of the -dedication of this street by the city. We do -not deem it necessarj' to incumber this opinion further by citation from authorities, but ample, authority to support the conclusions here reached is found in the cases of Rowan’s Ex’rs v. Town of Portland, 8 B. Mon., 232; Wickliffe v. City of Lexington, 11 B. Mon. 155; Railroad Co. v. Thompson, 79 Ky., 58; West Covington v. Frekimg, 8 Bush, 121; City of Covington v. McDonald, 94 Ky., 1, (21 S. W., 235); Dillon, M. Corp., 629; and Elliott, Roads & S. pp. 111-113. We are of the opinion that appellee has failed to establish its claim to the portion of Brighton street in contest, — 701 — either by grant or prescription, and that the title thereto was exclusively in the city council of Newport; and there is not ground on which to rest the judgment of the circuit court, and it is now reversed and cause remanded, with instructions to dismiss plaintiff’s petition. Petition for rehearing by appellee overruled.