Curran v. City of Louisville

• Decision Date: 23 February 1886
• Citation: 7 Ky.L.Rptr. 734,83 Ky. 628
• Parties: Curran v. City of Louisville. Dugan v. City of Louisville. McDonough v. City of Louisville.
• Court: Kentucky Court of Appeals

83 Ky. 628

7 Ky.L.Rptr. 734

Curran v. City of Louisville.

Dugan v. City of Louisville.

McDonough v. City of Louisville.

Court of Appeals of Kentucky.

February 23, 1886

APPEALS FROM LOUISVILLE CHANCERY COURT.

TEMPLE BODLEY AND F. W. MORANCY FOR APPELLANTS.

1. The charter of a municipal corporation must be strictly construed. Its terms can not be extended by intendment. It can confer no powers other than those expressly granted. The charter of Louisville of 1865 does not give the city the power to condemn private property for the purpose of making a canal basin. Hence the condemnation proceedings were void. ( Johnston v. Louisville, 11 Bush, 533; Cooley's Const. Lim., 530, 594; Elliott's Charter and Ordinances of Louisville, pages 146, 147; Hays v. Briggs, 74 Pa. St., 373; 55 Pa. St., 25.)

2. Under the condemnation proceedings the city took only an easement in the land condemned, the fee remaining in the original owners. (Eggleston v. Haff, 26 Ind. 38, 39; Washington Co. v. Prospect Park R. R. Co., 68 N.Y 591; In re Amsterdam Water Commissioners, 96 N.Y 351; West Cov. v. Freking, 8 Bush, 123; 16 N.Y. 97; article 7, section 1, Charter of Louisville; section 10 of an act to amend the charter of Louisville, approved June 2 1865; Green's Brice's Ultra Vires, page 100 and note; Barclay v. Howell's Lessee, 6 Pet., 498; Jackson v. Rut. & Bur. R. R. Co., 25 Vt. 151; Jackson v. Hathaway, 15 Johns., 447; Adams v Rivers, 11 Barb., 390; Hooker v. T. P. Co., 12 Wend., 371; People v. White, 11 Barb., 26; Heard v. City of Brooklyn, 60 N.Y. 242; Dean v. Sullivan R. R. Co., 22 N. H., 282; Quimby v. Ver. C. R. R. Co., 23 Vt. 387; Weston v. Foster, 7 Met., 297; Henry v. Dubuque & Cal. R. R. Co., 2 Iowa 288; Geisy v. R. R. Co., 4 Ohio St. 308; 41 Ind. 364.)

3. This easement was lost by non-user or abandonment. (123 Mass. 155; American Law Reg. (N. S.), vol. 2, page 513; 2 Washb. Real Prop., page 370; Parkins v. Denham, 3 Strob. (S. C.), 224; Steiner v. Tiffany, 13 R. I., 568.)

4. An easement in land condemned and taken for public use, is lost by being diverted from its original purpose. (Imlay v. Union Branch R. R. Co., 26 Conn. 255; 21 Mo. 582; 48 Mo. 363; 22 Iowa 357; Malone v. City of Toledo, 28 Ohio St. 643; Chase v. Sutton, 4 Cush., 167.)

W. O. HARRIS FOR APPELLEE.

1. Mere non-user does not operate as a forfeiture of an easement. To produce this effect, there must be an adverse use by the servient estate for such a period as would create a prescriptive right. (D. & N. R. R. v. Covington, 2 Bush, 526; Rowan v. Portland, 8 B. Mon., 250; Boone Law of Real Prop., sec. 147; Arnold v. Stephens, 24 Pick., 106; Chandler v. Jamaica, 125 Mass. 544.)

2. In order to show an abandonment, acts must be shown of such a conclusive character as to indicate clearly an intention to abandon. (Dyer v. Sanford, 9 Metc., 395; Hayford v. Spokesfield, 100 Mass. 491.)

3. A mere change of the purpose for which the easement was acquired, will not constitute an abandonment. (Boone Real Prop., sec. 147; Mendel v. Delano, 7 Metc., 176; Proprietors v. R. R. Co., 104 Mass. 1; Hatch v. R. R. Co., 18 Ohio St. 92; Malone v. Toledo, 28 Ohio St. 643; Chase v. Sutton, 4 Cush., 167.)

4. Leasing premises subject to an easement does not operate as a forfeiture. If the city had no right to make the leases, they are void and of no effect. (Belcher v. St. Louis, 5 Arm. & Eng. Corporation Cases, 417; Illinois, & c., v. St. Louis, 2 Dillon, 82.)

OPINION

HOLT JUDGE:

The lots of the appellants, Dugan, Curran, and McDonough, together with those of other owners in the city of Louisville, were, under a writ of ad quod damnum in favor of the city, duly condemned in 1867 for the building of a city or canal basin, and a wharf in connection with it, adjoining the Ohio river.

These actions were brought in 1879 by the appellants, who seek to recover the possession of their lots so condemned, and the assessed value of which they received from the city, upon the ground that the right or perpetual easement acquired by the city thereby has been lost by non-user and abandonment.

The city has been in possession of the lots ever since the condemnation; but, owing to its financial condition, has been unable to buy the additional adjoining land necessary for the designed purpose, and build what will be a costly public work. It has been proposed by its authorities to do so several times since the condemnation, but found to be impossible for the reason stated.

Three or four years prior to the bringing of these suits it leased, free of rent for ten years, a small portion of the property to a glass company for temporary purposes; and it has erected temporary frame buildings upon it.

The remainder of the property has been used by the city as a " dumping ground."

When these suits were brought negotiations were pending, but not concluded, between the city and a railroad transportation company for a lease of the property to it for a term of years.

The city had also given a transfer railroad company, by an ordinance fixing the terminal points, the right to cross its wharves and public ways between those points; and it is surmised and probable that it may cross this property at some point, as it will probably be the least expensive route. This, however, is a mere conjecture.

These facts, together with the failure of the city to take any step to devote the property to the use for which it was obtained, are relied upon by the appellants for a recovery of it.

The appellee holds the property by what is equivalent to an express grant without any limitation within which the right granted must be exercised.

It has had the exclusive control of it since the condemnation. No third party has acquired any interest, and no innocent person can be injured. There has been no adverse use, and conceding that the right of the city in the property is but a perpetual easement, yet there has been no interference with it by the servient estate.

The language of some cases seems to imply that the mere non-user of an easement, which has been acquired by prescription or adverse use, for a sufficient length of time, is of itself an abandonment; but more correctly, it is nothing more than evidence of an intention to abandon the right. In this case, however, the non-user for the designed purpose only extends over a period of twelve years.

Where, however, an easement has been acquired by grant or its equivalent, no length of mere nonuser will defeat the right. To do so there must be an adverse use by the servient estate for a period sufficient to create a prescriptive right. (Wash burne's Servitudes and Easements, page 640; Rowan v. Portland, 8 B. M., 250; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 545.)

The right to the use in such a case is not extinguished by mere disuse. There must be something more than this. There must be some act upon the...