Curry v. Kentucky Western Ry. Co.

• Decision Date: 03 February 1904
• Citation: 78 S.W. 435
• Parties: CURRY v. KENTUCKY WESTERN RY. CO.
• Court: Kentucky Court of Appeals

78 S.W. 435

CURRY v. KENTUCKY WESTERN RY. CO.

Court of Appeals of Kentucky.

February 3, 1904

Appeal from Circuit Court, Webster County.

"Not to be officially reported."

Action by the Kentucky Western Railway Company against H. M. Curry. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

M. C. &amp G. D. Givens, for appellant.

W. E Bourland, J. M. Dickinson, and Pirtle & Trabue, for appellee.

BURNAM C.J.

The appellee, the Kentucky Western Railway Company, brought this action against the appellant, H. M. Curry, to enforce the specific performance of the following written contract signed by appellant: "Agreement to Give Right of Way. We the undersigned landowners in consideration of the construction of a line of standard gauge railway to run from Dixon Kentucky, to a point on the Illinois Central Railway, agree that in case said railway is located through or over our land, we will give a right of way for same as an inducement for the construction of the railway." The petition alleges that, pursuant to the contract, plaintiff had taken possession of the right of way through defendant's farm constructed and put in operation over it a line of standard gauge railway from Dixon, Ky. via Lisman and Clay intersecting the Illinois Central Railway near Blackford, Ky. prior to the 19th of January, 1900; that since that date it had run two trains each way daily over its line of railroad through and over the right of way donated by the defendant, the right of way being described by metes and bounds; that the defendant had failed and refused to make them a deed to the right of way; and prayed that the court cause its commissioner to execute a deed to them, for and on behalf of the defendant, to the strip of land in controversy. The defendant, Curry, in his answer, says that early in the year 1899 he executed and delivered the paper filed with plaintiff's petition to James P. Hunt, who was acting for and in behalf of the Southern Construction Company of St. Louis, Mo., which was a different corporation than plaintiff, and alleges that the construction company had never accepted or acted upon the paper in any way, and denied that he had made or executed any other contract or paper; that the plaintiff was not incorporated until the 13th of December, 1899; and charges that plaintiff had taken possession of the strip of land through his farm against his will and without right; that, during the construction of its road, it had exposed his crops to the depredation of stock, to his damages, for which he prayed judgment. The plaintiff replied that during the year 1899 the citizens of Webster county, along the line of the railroad as now located, accepted a proposition made by the Southern Construction Company of St. Louis to organize and incorporate the Kentucky Western Railway Company; that a number of citizens agreed to, and did, subscribe for $30,000 of first mortgage bonds to be thereafter issued by the Kentucky Western Railway Company, when it was organized and incorporated, upon its line or railroad, rolling stock, and other property; that a number of landowners-- among them, the defendant--agreed to donate the right of way...