Kenner, &C. v. American Contract Company

• Decision Date: 14 December 1872
• Court: Kentucky Court of Appeals
• Parties: Kenner, &c. v. American Contract Company.

72 Ky. 202

Kenner, &c. v. American Contract Company.

Court of Appeals of Kentucky.

December 14, 1872.

APPEAL FROM CHRISTIAN CIRCUIT COURT.

McPHERSON & CHAMPLIN, PETREE & FAULKNER, For Appellants.

FELAND & EVANS, For Appellee.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

In the year 1854, A. J. Kenner, being the owner of a tract of land in the county of Christian, through which the Henderson & Nashville Railroad Company proposed to run their road, relinquished to the company the right of way upon the following terms and conditions: "In consideration that the Nashville & Henderson Railroad Company locate the Henderson & Nashville Railroad through my land (describing it by metes and bounds) I hereby relinquish to said company the right of way for said road without further charge. It is, however, understood that should the people of Christian County vote a tax for the building or completion of said road, then this right of way to be null and void."

The railroad company, under this agreement, shortly after entered upon the land of Kenner and graded the track of the road through his entire farm. A mortgage was then executed by the company upon its franchises, right of way, road-bed, etc., to secure the loan of a large sum of money, and for the payment of which the bonds of the company were executed. In the year 1866 the holders of these bonds instituted their suit in equity and had the mortgage upon the road foreclosed, and the road, with its franchises, road-bed, right of way, etc., was sold, and purchased by E. B. Sebree; and in the year 1867 Sebree sold the road to the Evansville, Henderson & Nashville Railroad Company.

In 1868, upon the petition of a majority of the qualified voters of Christian County, the county court of that county subscribed two hundred thousand dollars to the capital stock of the Evansville & Nashville Railroad Company, and levied a tax upon the property of the county to pay the interest on the subscription, and will continue, as appears in the agreed facts, to so levy the tax until the principal and interest is discharged.

The railroad company, after the making of this subscription by the county of Christian, or during the same year, proceeded to repair and reconstruct the grade of the railroad, originally made by the Henderson & Nashville Railroad Company, through and over this land, at a cost of about four thousand dollars, and used and controlled the track of the road, with its trains and engines, until the year 1870.

In the year 1870 the American Contract Company leased this road for a number of years from the Evansville, Henderson & Nashville Railroad Company, and as lessee has been in the possession of the road since that date.

Kenner, the owner of this land, died in the year 1863, leaving a will by which he devised this land to his widow, B. E. Kenner, during her widowhood, and then to his infant son, Henry S. Kenner.

Kenner was in the possession of the land at the date of the relinquishment of the right of way, and up to his death; and his widow has been in the continued possession since that time. No objection seems to have been made by Kenner in his lifetime, or by his widow after his death, to the grading and construction of this road through their land.

The widow, in her own right and as the statutory guardian and next friend of her infant son, conceiving that the levy of the tax in 1868 upon the property of the county for the completion and construction of this road operated to divest the appellee of all right to pass over this land with its trains, instituted the present action of trespass, on the 11th of August, 1871, against the appellee (the American Contract Company), alleging "that with force and arms the defendants had entered upon this land, constructed for the bed of the road with their trains, etc., against the will and consent of the plaintiffs, and for which they claim damages," etc.

An issue having been made by an answer to the petition, in which, among other things, it was pleaded that the relinquishment, made in the life-time of Kenner, of the right of way gave to the original company the right to enter upon the land, and that this inured to the benefit of the appellee, the law and facts were submitted to the court, without the intervention of a jury, and a judgment rendered for the appellee (the defendant), and from which this appeal is prosecuted.

The appellee also insists that the condition upon which the existence of the right of way depended has never transpired; that no tax was ever voted by the people of the county in aid of the construction of the Henderson & Nashville Railroad. 2. That the breach of the condition subsequent could not destroy the estate without actual entry having been made for that purpose by the grantor Kenner or his heirs. 3. That the appellants have waived their right to enter upon the land by their silent acquiescence in the construction of the road, and use of the land by appellee and those under whom it claims, at an expenditure by the latter of several thousand dollars, and therefore no action of trespass can be maintained.

The County Court of Christian having, upon the petition of a majority of the voters of that county, imposed a tax of two hundred thousand dollars upon the taxable property of the citizens for the purpose of constructing this railroad, we are inclined to the opinion that it was equivalent to a vote at the polls, and in considering the questions involved in this controversy will so regard it. It is true that this tax was levied to aid in the construction of the Evansville, Henderson & Nashville Railroad, but it was in fact the same road under a different name, running between the same points and upon the same track, partially constructed by and known as the Henderson & Nashville Railroad Company; and the Evansville, Henderson & Nashville Railroad Company, or its vendor Sebree, by the purchase under the decretal sale of the rights and franchises of the old company, became entitled, as owners of this road, to all the privileges and appurtenances belonging to it; if not, the appellee or its lessor at no time had the right to enter upon the land of the appellants for the purpose of constructing its road, and could be regarded in no other light than as trespassers ab initio.

There is nothing in the record entitling appellee to enter upon the land of the appellants but its purchase, including the easements, right of way, etc., belonging to the original company. The appellee now holds and claims the right of way by reason of the grant by Kenner in the year 1854; and although courts are disinclined to destroy estates, whether freehold or for years, by reason of the breach or happening of...