Cherry Bros. v. Tennessee Cent. Ry. Co.

• Decision Date: 25 November 1927
• Parties: CHERRY BROS. v. TENNESSEE CENT. RY. CO. ET AL.
• Court: Kentucky Court of Appeals

299 S.W. 1099

222 Ky. 79

CHERRY BROS. v. TENNESSEE CENT. RY. CO. ET AL.

Court of Appeals of Kentucky.

November 25, 1927

Appeal from Circuit Court, Christian County.

Action by Cherry Bros. against the Tennessee Central Railway Company and another. Judgment for defendants, and plaintiffs appeal. Reversed.

Selden Y. Trimble and McKenzie & Smith, all of Hopkinsville, for appellants.

J. W Downer and Frank Rives, both of Hopkinsville, for appellees.

DRURY C.

The appellants, whom, we shall refer to as Cherry Bros., were unsuccessful in an ejectment proceeding which they began against the Tennessee Central Railway Company, which we shall refer to as the Tennessee Central, and C. E. Southall, whom we shall refer to by name. In 1903, the railroad now owned by the Tennessee Central, was built from Nashville, Tenn., to Hopkinsville, Ky. and crossed in almost a north and south direction the farm of Mrs. Annie McKee. When the railroad was built, a public road was soon thereafter opened along the northern line of Mrs. McKee's property, crossing this railroad at practically a right angle, which is now known as the Pembroke road. Mrs. McKee and her trustee, Planters' Bank & Trust Company, of Hopkinsville, Ky. conveyed to the Tennessee Central a strip of land 100 feet in width entirely across her farm, upon which its railway was constructed and has since been maintained. We have examined the deed from Mrs. Annie McKee to the Planters' Bank & Trust Company creating this trust, and find that by this deed she conveyed this farm to them during her life, with the power to rent manage, and look after the property generally, and also with power to sell it, but that power to sell was not an exclusive power, and on May 17, 1905, there was recorded in the Christian county clerk's office a deed by which she conveyed this property to Sara H. McKee, Elizabeth McKee, and Carrie M. Roper, retaining a life estate. The opening of this Pembroke road, the needs of the community, and the desire of the Tennessee Central to get business suggested the establishment of a station in this neighborhood. Just across the Pembroke road from the land of Mrs. McKee was the farm of Richard Leavell. After the railroad was constructed, the Tennessee Central began to stop its trains at this road crossing, and gave to this stop the name of Pierceton. The people thereabout were sanguine enough to expect that a village would soon spring up there. Mrs. McKee was a daughter of Fidelio Sharp, who had been a distinguished lawyer in western Kentucky. She desired to have the stop named Fidelio, in honor of her father.

The railroad company desired some additional ground for depot purposes. There was some question as to whether this station should be placed south of the Pembroke road, upon the McKee property, or north of it on the Leavell property.

Mr. T. R. Troendle, a witness for Cherry Bros., testified that he was present at a conference held one summer day in 1903 in Mrs. McKee's front yard between Mr. John Russell, the local counsel for the road, Mrs. Annie McKee, her son, Sam McKee, and Mr. D. R. Carpenter, who was then right of way agent for the Tennessee Central. This is taken from his evidence:

"The conference was for the purpose of acquiring from Mrs. McKee an additional strip of land, more than the original right of way that they secured when the railroad was projected. Up to that time there had been considerable of a controversy in reference to where the depot should be built, and what the depot and what the station should be named. They objected to the name that it then had, and also objected to Dick Leavell having it named 'Leavell.' I believe at that time, right when this meeting was held, Leavell had succeeded in having the name changed to that of 'Leavell,' and I went to Nashville to see Mr. Newell, the president of the Tennessee Central; went all the way from Chicago on purpose to have them change it to Fidelio, in memory of Colonel Sharp, who owned, originally, all that land around there. Mr. Newell agreed to change it, and for the purpose of locating a station there Carpenter, Russell, and I went out there to see Mrs. McKee about securing additional land.

Mrs. McKee declined to make any price, but agreed that, as long as Sam was agent, as long as the depot was maintained there, and when it was named Fidelio, in honor of her father, an additional strip, for the convenience of the depot, might be used; but positively declined to name any price or to sell it."

All of the other parties at that conference are dead except Mr. Carpenter, and he testified that no such conference was ever held. This station, which is a flag station, was established immediately in front of Mrs. McKee's home, and probably about 100 yards therefrom, and a strip of ground was left open adjoining the 100 feet of right of way 50 feet in width from the southern line of Mrs. McKee's property for a distance of 1,136 feet, when it reached a point in front of her yard, and from there on to the Pembroke road, a distance of 305 feet, this strip that was left open was 80 feet wide. Mrs. McKee's yard fence was thus 30 feet farther from the railroad than the fence which separated her horse lot and other property from this strip of ground, and it is this strip of ground that is in dispute.

The Tennessee Central, in its answer, charges that in 1903, or soon thereafter, its predecessor, the Tennessee Central Railroad Company purchased under an oral and verbal contract and agreement, from Mrs. Annie McKee, for depot grounds and purposes at Fidelio, the strip of ground in question, that it was put in full and complete possession of the property by Mrs. McKee under an agreement from her to execute to the Tennessee Central a valid, legal conveyance thereof, and that thereupon its predecessor took possession of all said property, and that the Tennessee Central and its predecessor in title have since that time held, used, and owned the same, and had the open, notorious, continuous, peaceable, undisputed, actual, and adverse possession thereof, claiming to hold and to own the same, to the exclusion of every one else, and have since so held and used same, without objection or molestation from any source. The Tennessee Central admits in its answer that for some reason not known to it the said conveyance was never made. This strip of ground as well as the right of way of the railroad company was thrown open. Mrs. McKee used it in going from her horse lot to the Pembroke road and other parts of her property. The public used it in coming to her home and to her property, and also in coming to the railroad station. The front gate of Mrs. McKee's yard opens on this strip of ground. She used it every time she came out that gate. Her stables and lots were connected with it by a yard gate, and she and her tenants used it in going to and from her stables. She had a barn a little farther south, of which the same is true. She had a field west of the railroad tracks and in order to reach that field, from her house, stable, or barns, she drove out onto this disputed strip, then drove down the strip to the southern end of it, where she crossed the railroad to her west field. This strip was her outlet to the world and her inlet therefrom to her home and improvements. There is some evidence that she cultivated this strip or a portion of it in tobacco and potatoes, but there is also evidence disputing this. There is evidence that brush and other obstructions were placed on this strip by her son, Sam McKee, to compel the public to confine its use to the 100-foot right of way, and there is evidence from farmers who were delivering produce there that they were directed by Sam McKee to keep on the 100-foot strip, and to stay off of this disputed strip.

A switch or side track was constructed, and instead of being built alongside, near and parallel to the main track, it was constructed in a bow shape, so that in the middle of it the center of this side track was more than 50 feet from the center of the 100 foot right of way, and a small portion of this side track was thus on the disputed strip. No depot or other station facilities were erected by the railroad company except a sort of shed for loading and unloading tobacco and a chute for loading cattle; the whole of this shed was on the disputed strip, also a portion of the cattle chute was on it, and a portion of it was on the 100-foot right of way.

Mr. Sam McKee and the other farmers in the neighborhood made up money among themselves, bought and installed a wagon scales on this strip in dispute. Those scales were used by these farmers for weighing their produce, and Mr. Sam McKee used them for weighing cattle and other produce which he bought and shipped at that station. Sam McKee died in 1908, and Mrs. Annie McKee died a few weeks thereafter.

The Tennessee Central and Southall contend that in 1909, Mr. T R. Troendle obtained a lease from the Tennessee Central and constructed a storehouse, the larger part of which was on the 100-foot right of way, but a portion of which may have been on this disputed strip; that storehouse has now been moved, and the witnesses seem to be unable to definitely fix its former location. The shed provided for loading tobacco has dropped into decay, and that is gone. The...