Floyd v. Louisville & N.R. Co.

• Decision Date: 19 April 1904
• Citation: 80 S.W. 204
• Parties: FLOYD v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

80 S.W. 204

FLOYD v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

April 19, 1904

Appeal from Circuit Court, Marlon County.

"Not to be officially reported."

Action by G. C. Floyd against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Hugh P Cooper, for appellant.

B. D Warfield and William C. McChord, for appellee.

BARKER J.

This record involves the claim of appellee to a right of way 66 feet wide, running through the middle of a 70-acre tract of land situated in Marion county, Ky. belonging to appellant.

Appellant instituted this action by filing a petition in the Marion circuit court, in two paragraphs. By the first he sets up the fact that, more than 30 years before the institution of his action, appellee built its roadway through the land he now owns, actually occupying a strip about 14 feet wide, the possession of which it has held and used continuously since that this strip of land is worth the sum of $250; and that by reason of the use of this easement by appellee, the remainder of the tract has been injured in the sum of $500; and he therefore prays for a judgment for the sum of $750.

The pleadings and undisputed facts show that what is known as the "Lebanon Branch" of appellee's road was built in 1864, running through the land now owned by appellant that at the time of the alleged trespass it was owned in part by one C. D. Prewitt, who afterwards obtained title to the whole, and conveyed it, and by regular succession of title it came into the ownership of appellant more than 30 years after the injury complained of. The cause of action, if any, set up in the first paragraph, accrued to C. D. Prewitt and his then co-tenants, and it is difficult to see upon what principle appellant can assert an interest in a chose of action belonging to his remote vendors, and barred by the statute of limitation for more than 20 years. The court would doubtless have sustained a demurrer to the first paragraph, had one been filed.

In the second paragraph appellant alleged that, although he was the owner of the land in question, appellee, in addition to the strip 14 feet wide which it had actually occupied for 30 years, was wrongfully claiming title to a strip 66 feet wide through the whole of his boundary; that this claim was wrongful and unwarranted, and cast a cloud upon his title to the remainder of the strip of land; and he therefore prays that the cloud be removed, and appellee be adjudged to have no interest in it beyond the 14 feet which it had actually held in adverse possession since 1864.

The first question that meets us is whether or not this second paragraph states a cause of action. Appellant nowhere alleges that he is in possession of the land from which he desires to remove the cloud. The statute authorizing third, action is contained in section 11, Ky. St. 1903, and was originally enacted in 1854. It is as follows: "It shall and may be lawful for any person having both the legal title and possession of lands to institute and prosecute suit by petition in equity in the circuit court of the county where the lands or some part of them may lie, against any other persons, setting up claims thereto; and if the plaintiff shall be able to establish, and does establish, his title to said land, the defendant shall be, by the court, ordered and decreed to release his claim thereto." In Pomeroy's Code Remedies,§ 369, in speaking of the...