Chesapeake & O. Ry. Co. v. City of Bellevue

• Decision Date: 21 April 1931
• Citation: 239 Ky. 61,38 S.W.2d 943
• Parties: CHESAPEAKE & O. RY. CO. v. CITY OF BELLEVUE.
• Court: Kentucky Court of Appeals

38 S.W.2d 943

239 Ky. 61

CHESAPEAKE & O. RY. CO. v. CITY OF BELLEVUE.

Court of Appeals of Kentucky

April 21, 1931

Rehearing Denied June 16, 1931.

Appeal from Circuit Court, Campbell County.

Suit by the City of Bellevue against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Galvin & Tracy, of Cincinnati, Ohio, and Odis W. Bertelsman, of Newport, for appellant.

George J. Herold, of Newport, for appellee.

CREAL C.

Bellevue is a city of the fourth class situated on the Ohio river in Campbell county. The city of Newport lies immediately to the west and south and the city of Dayton immediately to the east.

A line of railroad owned or operated by the Chesapeake & Ohio Railway Company runs through the city, and, beginning at the city limits of Newport, the general course of the railroad through Bellevue is a little west of north. This railroad was constructed about the year 1888. In December, 1886, the city council of Bellevue granted to the Elizabethtown, Lexington &amp Big Sandy Railroad Company a franchise to build a line of railroad through the city, but, after leaving the then southern limits of the city, the railroad ran through a suburb called East Newport and through what was called the E C. Topie addition and the Berry addition. The right of way through this addition was acquired by purchase by the Construction & Building Company, and it is alleged, and not denied, that the title is now in appellant.

The Construction Company purchased lots on both the east and west side of what is called "Pendleton Avenue," and the deeds describe the lots abutting on that avenue. All of the deeds refer to a map or plat of the addition and to Pendleton avenue, but it appears that this plat or map is not now of record, or at least has not been found.

The railroad consists of a double track, which crosses Pendleton avenue diagonally. The avenue is 50 feet in width. The original level was much lower than the desired grade line of the railroad, so a trestle work was constructed across Pendleton avenue. This was later filled in with earth leaving the trestle work intact.

In 1894, by judgment of the Campbell circuit court, territory including East Newport and Pendleton avenue where it is crossed by the railroad was annexed and became a part of the city of Bellevue. Berry avenue runs from Fairfield avenue to Sixth street, north of the railroad, and Pendleton avenue is a continuation of Berry avenue from Sixth street to Bonnie Leslie avenue to the south of the railroad. These two avenues form a continuous and straight street between extreme points indicated. To the south of E. C. Topie and Berry additions is a comparatively new addition known as Bonnie Leslie. The railroad, as we judge from plats which are in evidence, divides the city into about equal parts territorially, but, so far as the population is concerned, 75 per cent. or more of the inhabitants live to the north of the railroad and between that and the Ohio river. Practically all of the available building lots in old Bellevue have been built up, and, if the city is to grow, the growth must be to the south and east of the railroad.

In February, 1929, the city council of Bellevue passed a resolution, which it is not necessary to set out in full, but the purpose of which was to order the Chesapeake & Ohio Railway Company to restore Pendleton avenue as nearly as practicable to its former usefulness or to place it in such condition as to make it safe for travel at the point where the fill hereinbefore referred to was made.

The company having failed to comply with the order or request of the council, the city instituted this action in equity, and in its petition alleged all the facts as herein-before set forth, and other facts tending to show that the only practicable way in which to restore the street would be by an underpass at the point where the fill was made, and it prayed that the railroad company be required to construct and maintain a suitable underpass below its tracks so that pedestrians and vehicles might pass over and along Pendleton avenue.

The railroad company traversed the allegation of the petition, and by amended answer pleaded and relied upon the statute of limitation as a bar to plaintiff's right to relief or recovery.

Proof was taken, and, on final hearing, the court entered judgment in which the Chesapeake & Ohio Railway Company was enjoined and commanded to construct an underpass under its tracks on Pendleton avenue and necessary approaches thereto, with a minimum clearance between the surface street and the overhead structure of 13 1/2 feet, with not more than a 10 per cent. grade. The company was directed to begin the construction on or before the 15th day of April, 1931, and to complete same on or before the 15th day of October, 1931, it was perpetually enjoined to maintain said underpass and approaches thereto to the outside limits of its right of way.

This case has been well and extensively briefed by counsel for the respective parties, and, in an effort to reverse the judgment of the lower court, appellant argues seven different propositions. We shall not attempt to dispose of these questions in the order in which they are treated in the brief.

The first question to be determined is whether this strip of land known as Pendleton avenue is a dedicated street of the city of Bellevue. It is clearly established by public records that lots were sold in the Topie and Berry additions, and reference was made in the deeds to a plat; that the lots were described as fronting on Pendleton avenue, and appellant's deeds to lots adjacent to Pendleton avenue contain such references. The railroad company makes no claim of title to any portion of the 50-foot strip between the lots to the east and the west over which it has acquired its right of way, unless it is still insisting on title by adverse holding. It does not appear that the company is relying upon its plea of limitations, as that question is not raised or discussed in the brief filed by its counsel. In the light of section 2546, Ky. Statutes, and the proof in this case, a plea of limitations would be of no avail, if Pendleton avenue is a street of the city of Bellevue. Appellant's apparent abandonment of its plea of limitations might be construed as indicating, at least, a tacit concession that Pendleton avenue is a public street.

In the case of Schneider v. Jacob, 86 Ky. 101, 5 S.W. 350, 351, 9 Ky. Law Rep. 382, it is said: "And the principle is also well settled that where the owner of land lays the same out into building lots, streets, and alleys, and exhibits a map of it, which defines the lots, streets, and alleys, though the streets and alleys are not yet actually opened, and sells the lots as bounded by such streets or alleys, this is an immediate dedication of such street or alley to the use of the purchaser and to the public."

In the recent case of Brewer v. City of Mayfield, 231 Ky. 356, 21 S.W.2d 436, 437, this court said: "To effect a dedication of streets and alleys shown on a plat it is not necessary that the plat be signed and acknowledged by the owner or recorded in the county clerk's office. It is admitted that Neale, the owner, employed the county surveyor to survey and plat the land, and that pursuant to this authority he prepared and filed in his office a plat showing certain lots bordering on Robertson street, and that Neale afterwards sold several lots bordering on said street and described them by the numbers marked on the plat. This was a dedication to the use of the purchasers and the public, even though the street and alleys were not actually opened up."

See, also, City of Middlesboro v. Ky. Utilities Co., 237 Ky. 523, 35 S.W.2d 877.

In this case, the lots along Pendleton avenue were sold under deeds making reference to a map or plat and also to this street, so under the cases cited it became a dedicated street for the use of the purchasers of lots and of the public, generally. Not only so, but it seems to be conceded that Berry avenue is an established street from Fairfield avenue near the river to Sixth street, which is a few hundred feet north of the railroad fill and tracks, and that Pendleton avenue is open and has been improved with concrete paving from Bonnie Leslie avenue to a point at or near the south side of the railroad fill.

It is earnestly urged by the counsel for appellant that there is no showing that a narrow strip of land between Covert Run pike and Sixth street to the north of its fill has ever been dedicated for street purposes. In making this assertion, counsel relies on the evidence of Mr. Levi Shepler, who testified that he had made a careful examination of the records in the county clerk's office, and he found nothing which he considered to be a dedication from the south end of Pendleton avenue and Covert Run pike to the intersection of Sixth and Berry streets.

Mr. Morlidge, the city engineer of Bellevue, testified that the strip of land referred to by Mr. Shepler is owned by the Spinks estate, and that in 1928 he made a plat for the owners that dedicated the street through this land; that the plat was filed as exhibit in a suit to close certain highways and to open others, and shows a dedication of Pendleton avenue between the Covert Run pike and Sixth street.

The action referred to was pending in the Campbell circuit court and styled City of Bellevue v. Laura Spinks et al. The plat of the city of Bellevue made in 1929, and showing a street through the strip of land in question, is filed as exhibit in this case, and Mr. Morlidge testified that it is shown on the maps or plans in the suit of the city against Laura Spinks and others. He further testified that the plans referred to...