Blair v. City of Pikeville

• Decision Date: 05 June 1964
• Citation: Blair v. City of Pikeville, 384 S.W.2d 65 (Ky. 1964)
• Parties: Ted BLAIR, Appellant, v. CITY OF PIKEVILLE et al., Appellees.
• Court: Supreme Court of Kentucky

Page 65

384 S.W.2d 65

Ted BLAIR, Appellant, v. CITY OF PIKEVILLE et al., Appellees.

Court of Appeals of Kentucky.

June 5, 1964.

Rehearing Denied Dec. 18, 1964.

Joe Hobson, Prestonsburg, V. R. Bentley, Pikeville, for appellant.

James P. Ramsey, Dan Jack Combs, Hobson & Stephens, O. T. Hinton, Pikeville, for appellees.

DAVIS, Commissioner.

Appellant Blair asks reversal of a judgment of the Pike Circuit Court denying his claim for damages against appellees, City of Pikeville and its contractor, Mitchell Preston. The appellant's damage suit arose when appellee city, through its co-appellee Preston, constructed a sewer line over appellant's Lots 40, 41 and 42 of T. J. Williamson Addition to the City of Pikeville.

Appellant attacks the adverse judgment on these grounds: (1) The easement under which the city claims is invalid; (2) it was error to direct a verdict for the city; and (3) the court erred in the instructions given and in refusing the instructions offered.

Appellant acquired title to the three lots in question in 1932; at that time there was a residence on the property. In the chain of appellant's title was a deed executed by T. J. Williamson which contained the following provision:

'There is reserved and excepted to T. J. Williamson, heirs and assigns and the City of Pikeville, and right to install and maintain a public storm and sanitary sewer over and through said lot, allowing connection to the second party.'

It was not until 1957 that the appellee city undertook to exercise any right it had under the quoted deed provision.

By his complaint, appellant charged that during 1957 and 1958 the city, through its contractor, Preston, while constructing a road-way or sewer line over, through and across appellant's lots, 'wrongfully, willfully, wantonly, oppressively, and maliciously' cut down and destroyed various trees, fences, hedges, arbors, flowers, plants, concrete steps, complete water system, water lines, gas lines, plumbing and fixtures of appellant. Additionally, appellant charged that the activities of the appellees had damaged his residence building, including damage to its interior, roof and foundation. Appellant further claimed that his outbuildings and sidewalks had been damaged incident to the acts of appellees, and laid his claim for damages in the sum of $10,000.

At the conclusion of all the evidence the trial court directed a verdict in behalf of the appellee city, but submitted the question of appellee Preston's liability to the jury. The trial court's instructions informed the jury that appellee Preston had a right to construct the line, but that liability should be imposed upon him if he constructed the sewer 'in an intentional, wilful and wanton manner, and thereby damaged' appellant's property. The court further instructed the jury that if it believed that appellee Preston performed the work according to the contract and pursuant to the plans and specifications, 'in a careful and prudent manner,' he was not liable for any damage. The jury returned its verdict for appellee Preston.

It is the contention of appellant that the city took nothing by the provisions of the deed just recited, and to support that view appellant relies upon the cases holding that a reservation or exception in favor of a stranger to the deed is void or inoperative. Appellant urges that his view is fully supported by Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34, 100 N.E. 434, Ann.Cas.1914B, 1287; Flynn v. Fike, 291 Ky. 316, 164 S.W.2d 470; Slone v. Ky. W. Va. Gas Co., 289 Ky. 623, 159 S.W.2d 993; and Allen v. Henson, 186 Ky. 201, 217 S.W. 120.

We renounced the rule invalidating reservations to a stranger in Townsend v. Cable, Ky., 378 S.W.2d 806. Moreover, it is not believed that the rule would have controlled this case in any event, since Williamson was a party to the deed, and the reservation was to him. Obviously, by the terms of the quoted deed, Williamson reserved the easement, so it did not pass to appellant; we need not determine whether Williamson effectively dedicated the easement to the appellee city, since appellant has no interest in that matter, and there is no dispute between Williamson and the city.

It is noted that the easement did not contain language fixing its precise location, nor were details inserted fixing its width, depth or other specifications. In such circumstances, reason and authority dictate that the rights obtained by the dominant owner are those necessary for the reasonable and proper enjoyment of the easement. By parity of reasoning, the owner of the servient estate retains the right of full dominion and use of his land, except so far as a limitation of his right is essential to the fair enjoyment of the easement. Maxwell v. McAtee, 9 B.Mon. (48 Ky.) 20; 28 C.J.S. Easements Sec. 75; Horky v. Ky. Utilities Co., Ky., 336 S.W.2d 588; 17A Am.Jur., Easements, Sec. 112; Vol. 3, Tiffany on Real Property, 3rd Ed., Sec. 803.

The principles involved were recognized in Louisville & N. R. Co. v. Pierce, Ky., 254 S.W.2d 943, in which it is said:

'Generally, the rule has been established that if an easement is granted or reserved in general terms which do not fix its location the owner of the servient estate has the right in the first instance to designate the location of the easement. The right, however, must be exercised in a reasonable manner with due regard to the rights of the owner of the dominant estate.'

Thus, is may be said that the rights and duties of the dominant and servient owner are correlative; neither may unreasonably exercise rights to the injury of the other. Cf. Central Ky. Natural Gas Co. v. Huls, Ky., 241 S.W.2d 986, 28 A.L.R.2d 621.

It is recalled that the appellant acquired the property in 1932, at which time a dwelling was already constructed. The easement had already been created, but not exercised. We think it is at once apparent that the city could not reasonably have demanded the removal of...