Louisville & Nashville Railroad v. Quinn , 94 Ky. 310 ( 1893 )

CHIEF JUSTICE BENNETT

det - vered the opinion op the court.

As the issues in these cases are similar, they will be heard together and disposed of by one opinion.

Prior to 1872, the Louisville, Cincinnati and Lexington Railroad Company’s depot was on Jefferson street. In 1872, the city of Louisville agreed with the Louisville, Cincinnati and Lexington Railroad Company that it would give said company a right of way along the old bed of Beargrass creek, and grade it and fit it for use in consideration of said company surrendering to the city its right of way on Jefferson street. The city, pursuant to this agreement, by condemnation proceedings, condemned the right of way along Beargrass creek. The jury that tried the condemnation proceeding did not specify the number of feet condemned, but condemned the land “described in the petition and included the lines designating the extension of the railroad tracks.” The verdict was accepted and recorded as thus returned, and judgment was rendered condemning the lands in the same terms. The land was surveyed by the city engineer, the lines were established and stakes set designating the lines, and the owners, the appellees, were shown the lines and stakes, as the lines of the right of way thus condemned. The engineer returned to the court his survey, which was accepted, and the appellees accepted the survey as correct, and built their fences, and one of them a house on the line thus establised by the engineer. Said fences have remained on the said line ever since, and the appellees have held the actual adverse possession of said land up to said line and fences ever since, a period of more than twenty years; and the appellant, the vendee of the Louisville, Cincinnati and Lexington Railroad Company, as clid its vendors, has held the land surveyed by said engineer ever since, and claiming no more as its right of way until within the last few years when it brought these suits. It contends by these suits that the appellee had obstructed its right of way by building fences, and the corner of a house about two feet on its right of way. But, as said, the evidence authorized the chancellor’s opinion that the fences, &c., were built on the line made by the engineer, and that they have remained on said line ever since. But it may be, and it is probably true, that the engineer did not include land enough in the survey by the quantity now claimed. Therefore, the question is, does the acquiescence of the appellant and its predecessors in .said survey, and the adverse holding of the land up to said line-by the appellees for fifteen years and more, bar the appellant’s right to it and vest the appellees with the appellant’s title? It will be borne in mind that the appellant, or those under whom it claims the easement or dominant estate, never had the strip of land in controversy in possession, either actual or constructive ; nor did it ever claim a right of easemeu t. therein until the present controversy arose, more than fifteen years after the condemnation proceeding.

But the appellees all the time held the adverse possession of the strip, and claimed it as their own, and as not included in the land condemned, all of which the appellant, and those under whom it claims, conceded until this controversy. Now the appellees’ land was sold by the judgment of a court; they were vendors in inmtum. The court took so much land by metes and bounds, and said to the appellees,, this is the specified boundary of land that is taken from yon; the-balance of the tract up to this line is not taken; it is yours. The appellees accept the survey, and hold the adverse possession of the land up to the line thus fixed for more than fifteen years, claiming it as their own, and the court’s vendees all the time concede the right. It seems that the error could only be corrected under the idea of mistake in the survey, and the time allowed for that has long since passed, and adverse possession for fifteen years has barred the appellant’s right. It is well settled that the right to the dominant estate — the easement- — may be extinguished by the renunciation of the party, either expressed or implied, as by permitting the owner of the servient estate to take the actual adverse possession of it, to build on it, and to use it in other respects as his own for fifteen years. While mere non-user will not be an abandonment of the easement, if it is created by deed, yet if the owner of the servient estate is permitted to hold the adverse possession of it fifteen years, the dominant interest will be extinguished. (See Taylor v. Hampton, 4 McCord, 96, and other cases cited in note 2, 6 Am. & Eng. Enc. of Law, page 147, and Jewett v. Jewett, 16 Barb. (N. Y.), 150, cited in the same note on page 148.)

As said, admitting that there was a mistake in making the survey, nevertheless the time has passed for correcting the mistake, and the appellees have been permitted to hold the adverse possession of the land for fifteen years and more, claiming it as their own, and the appellant all that time conceding their claim of right. It, therefore, seems to us that their claim ought to prevail.

The judgment is affirmed.