Bosworth v. City of Mt. Sterling

• Decision Date: 12 June 1890
• Citation: 13 S.W. 920
• Parties: BOSWORTH v. CITY OF MT. STERLING.
• Court: Kentucky Court of Appeals

13 S.W. 920

BOSWORTH v. CITY OF MT. STERLING.

Court of Appeals of Kentucky.

June 12, 1890

Appeal from circuit court, Montgomery county.

"Not to be officially reported."

Lewis Apperson and Wm. H. Holt, for appellant.

Ed. C Orear, for appellee.

PRYOR J.

This action was instituted by the city of Mt. Sterling against Sallie D. Bosworth and others to recover a small strip of land in the possession of the defendants, and which is alleged constituted a part of one of the streets of that city, and had been without right inclosed by the defendants. The case was brought and tried in a court of equity and judgment rendered for the city. The testimony conduces to show that the strip of land in dispute had been originally a part of one of the streets; and, on the other hand, it appears that the defendants, and those from whom they derived title, had inclosed that land as a part of the lot adjoining and have used, possessed, and claimed it as their own for the period of 20 years. The statute of limitation was pleaded as a defense to the action. After the defendants had been in the possession of this ground, with an actual inclosure, for the period of 11 years, claiming it as their own, the act upon which the recovery was based was enacted by the legislature. This act was passed in December, 1873, and is found under the title of "Limitation of Actions." Gen. St. 637. The substance of this statute is that limitation "shall not begin to run in respect to actions by any town or city for the recovery of any street, alley, or other public easement or any part of either, * * * until the trustees or the council or the corporation * * * have been notified in writing by the party in possession, or about to take possession, to the effect that such possession will be adverse to the right or title of such town or city." The possession is deemed amicable until the notice is given.

Under the title "Construction of Statutes," it is provided that no part of this revision is retrospective unless expressly so declared. Id. c. 21, § 14. It is insisted for the appellant that, the entry having been made prior to the adoption of the General Statutes, that the provision in reference to limitation has no application to this case, and to determine otherwise would affect an existing right. The statute applies to the party in possession, as well as to one about to take possession; and, besides, there can be no retrospective...