Dixon v. Giles

• Decision Date: 25 March 1947
• Parties: DIXON v. GILES et al.
• Court: Kentucky Court of Appeals

200 S.W.2d 919

304 Ky. 354

DIXON v. GILES et al.

Court of Appeals of Kentucky

March 25, 1947

Appeal from Circuit Court, Christian County; Ira D. Smith, Judge.

Suit by Howard Giles and others against John M. Dixon to enjoin defendant from interfering with plaintiffs' use of a road. From an adverse judgment, defendant appeals.

Judgment reversed with directions.

S. Y Trimble, IV, of Hopkinsville, for appellant.

W. H Southall, of Hopkinsville, for appellees.

MORRIS Commissioner.

Prior to 1887 a corporation planned to build a railroad from Gracey Kentucky to Clarksville Tennessee, running southwardly through Christian County. It procured rights of way by purchase and condemnation. Later the L. & N. R. R. took over completed and operated the road.

The controversy involves a portion of the road bed as it crossed the Fox and Radford tracts (now Dixon's) a distance of about 4000 feet. Shortly before the suit instituted by appellees, Giles and eight others, Dixon erected fences claiming title to the land, and that by abandonment, as will be later developed, he had that right. The record shows that as to the Radford tract, a life tenant had conveyed to the company an unconditional right of way with covenant of warranty. The right across the Fox tract was condemned, a Commissioner conveying easement only. It is unnecessary to detail how titles came to Dixon or his predecessors, except to point out that as to the Fox tract, Mrs. Hettie Dixon, mother of appellant, by mesne conveyances became the owner and later acquired the 50 foot strip by deed from the State; Dixon purchased the Radford tract from remaindermen.

It was stipulated that Mrs. Dixon acquired fee simple title to the Fox land in 1933, and the chancellor's opinion correctly stated: 'It may be conceded that when the railroad ceased to function and conveyed its rights to the County, it could not divest the Dixons of their right to this strip of land, which reverted to them when the railroad discontinued its line.'

The railway operated until 1933 when it was abandoned, and the fiscal court agreed to take over the road bed for $3,000. Parties along the line subscribed and paid that sum and about $700 more, apparently used in improvement. In September the L. & N. conveyed to the county the entire right of way, most conveyances carrying fee simple title, but as to the Radford and Fox tracts only quit claims. For a short while after this conveyance the roadway was used as a county road. However, in 1934 the Legislature adopted it as a part of the primary system, designating it Highway No. 117. (Acts 1934, Ch. 306). The Act provided that its construction, maintenance and control should be subject to the law creating primary roads.

If this road was what was formerly called a 'State Aid' road, it lost that character by legislation in later years, particularly in 1938, K.S. § 4356-t-1 et seq, when it became by law a part of the general highway system, with complete control, maintenance and supervision in the Commission. The only order which could be construed as a record dedication was one of the fiscal court, January 1937, providing that the road be named the 'Gracey-Oak Grove Road, being primary road (No. 117) established by the Acts of 1934.' There is some very satisfactory proof that during intervening years the County leased a rock quarry and 'rocked the road,' but this seems to have been done according to the road engineer, by the State with W.P.A. aid. There is no appreciable showing that after the Dixon part of the roadway was later abandoned, anything was done by the County to maintain this portion, nor such proceedings as would constitute the abandoned portion a County road, as provided by the law, relied upon by appellees to show that the road was illegally closed. The abandonment last mentioned came about thuswise:

In the early part of World War II, the War Department established Camp Campbell, partly in Tennessee, partly in Christian County, with an airport about two miles east of the boundary of Dixon's land and Palmyra Pike. This resulted in a closing of old 117, southeastwardly from the western camp line to a point near the Tennessee line, necessitating relocation of Highway No. 117 somewhat north, the new road leaving the old at a point near the western boundary of Dixon's land, and running across the Fox tract, thence southwardly. This left the old roadway on his tracts for a distance of about 4000 feet from his west boundary to the Palmyra Pike, and about 2 miles of old 117 between his eastern boundary and Palmyra Pike, and the western line of Camp Campbell. Mrs. Dixon was then living, and the change necessitated the procurement from her of a right across her northern boundary of the Fox tract, which she conveyed to the State, and a short time later the State in consideration, quitclaimed to her the old 50 foot right over that tract; her title upon her death vested in Dixon, a brother and sister.

After the relocation, Dixon claiming title, expressed a purpose of building fences across the strip, but upon conference with Camp officers he was told that the Army desired to use it for maneuvers, and he agreed. When the Army's use had ceased some time in 1945, Dixon erected the proposed fences, which he says were torn down several times, but rebuilt by him; this precipitated the instant suit by Giles and his co-plaintiffs, some few of whom lived east of Herndon and near Howell, just south of old 117, a short distance from new 117, and not far distant from Palmyra Pike, which ran northward and intersected the new highway, and not disturbed by the change.

In the petition of plaintiffs on their behalf and others similarly situated, it was alleged that Dixon had obstructed a public road, highway No. 117 leading from Gracey to Herndon, which they...