Eastern Cemetery Co. v. City of Louisville

• Decision Date: 02 April 1891
• Citation: 15 S.W. 1117
• Parties: EASTERN CEMETERY CO. v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

15 S.W. 1117

EASTERN CEMETERY CO. v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

April 2, 1891

Appeal from Louisville law and equity court.

T. L Burnett, for appellant.

H. S Barker and D. M. Rodman, for appellee.

BENNETT J.

The controversy in this action involves the right of the appellant to remove and reset its fence about 30 feet north of where it was situated before removal. The appellee claims that the strip of ground from Baxter avenue to Hamilton avenue is a public street, having been made such by dedication or adverse user, and the appellant had obstructed the same by removing and resetting its fence in the middle of said street, commencing at a point where the street ceased to be improved, and running to a point near Hamilton avenue where the improvement again commenced, a distance of about 1,400 yards. The appellant contends that said strip of ground is not a public street, by dedication, adverse user, or otherwise; that 30 feet of it belongs to the appellant, and it built its fence on the line; and the use of said 30 feet theretofore was merely permissive. The witnesses Peter Pheffer, John Dresher, Jacob Nickel, Thomas Hannon, Richard McGuire, Michael Riddington, James Regan, Covertine, and Peter Hort, all of whom evidently knew whereof they spoke and Charles and George White, sons of the appellant's sexton, who built the first fence in 1867 for the appellant one of the sons helping to build it, establish the following facts: That in 1867 the appellant, then being the owner of the cemetery ground on the south side of the strip of ground claimed by the appellee to be a public street, caused a fence to be built along said strip, where it remained for over 15 years, when the appellant removed and reset it, 30 feet further north, in the middle of said street; that said strip, before the fence was built in 1867, was known and used as a public highway, and from the time said fence was built (1867) the strip was universally known and used as a public street for more than 15 years; that the appellee had erected and kept telephone and fire-alarm poles along it, etc.; that by reason of a hole and ravine in the street at a point where it was not improved it was unsafe for carriages, etc., to pass, and for that reason it was not frequented by these conveyances, but it was at all times open to them; that the fence was kept up, and the street was known and used as a public street, for...