Brown v. City of Frankfort

• Decision Date: 13 October 1888
• Citation: 9 S.W. 384
• Parties: BROWN v. CITY OF FRANKFORT et al.
• Court: Kentucky Court of Appeals

9 S.W. 384

BROWN v. CITY OF FRANKFORT et al.

Court of Appeals of Kentucky.

October 13, 1888

Appeal from circuit court, Franklin county.

Bill for injunction by Orlando Brown to prevent the Frankfort Water Company and the city of Frankfort from digging up and removing certain waterpipes which supplied complainant's premises with water. From the order dissolving the temporary injunction, and dismissing the petition, complainant brings this appeal.

Wm Lindsay, for appellant.

Geo. C Drane, D. W. Lindsey, and W. C. Herndon, for appellees.

PRYOR J.

The city of Frankfort, many years since, constructed a reservoir two or three miles from the city, and laid its pipes so as to conduct the water for the use of the public. The pipes were laid on the farm of Orlando Brown, Sr., from one extremity to the other, under an arrangement by which Brown was to have the use of the water upon terms that are not clearly defined. After the death of Orlando Brown, the present appellant Orlando Brown, Jr., became the owner, and controlled the land through which the pipes were laid. In the year 1882 the city desiring to lay down new and larger pipes, entered upon the land without the consent of the appellant, and dug a new and separate ditch for the new pipes. Brown claiming damages for the trespass, the city, through its council, appointed one of the members to arbitrate or settle the differences existing between him and the city. They entered into an amicable settlement of the claim of Brown; the latter "agreeing to release his claim for damages, and also to convey to the city the right of way for the pipes leading through his land between the city limits and the reservoir, with the right to enter on said lands to make any necessary repairs on the pipes, and to relay the same, on the payment by the city to Brown of two hundred dollars, and Brown to have at all times, on such place on said land as he may designate, the free use of two ordinary hydrants, the service pipes therefor not to exceed 3/4 inches in diameter, and to be furnished and kept up by said Brown without cost to the city, the deed to be made by Brown, describing the right of way, and the $200 to be paid when the deed is acknowledged and accepted by the council." The deed was made by Brown, setting forth all the terms and conditions of the agreement recited, and was accepted by the council in the year 1883. After this contract had been entered into, and when each party from its execution and acceptance had been in the enjoyment of their rights acquired by it, the city contracted with a water company, incorporated by an act of the legislature, to furnish water to its inhabitants from a different locality or reservoir that the company agreed to construct; also sold to the company its water-mains and appurtenances and franchises of the old way, giving to the company the right to dig up the larger pipes on the old way, to be used by them in the construction of their new works. It is alleged, or the fact exists, that the water company took up all or most all of the new or large pipes, and...