George T. Stagg Co. v. Frankfort Modes Glass Works

• Decision Date: 01 May 1917
• Citation: 175 Ky. 330,194 S.W. 333
• Parties: GEORGE T. STAGG CO. v. FRANKFORT MODES GLASS WORKS.
• Court: Kentucky Court of Appeals

194 S.W. 333

175 Ky. 330

GEORGE T. STAGG CO. v. FRANKFORT MODES GLASS WORKS.

Court of Appeals of Kentucky.

May 1, 1917

Appeal from Circuit Court, Franklin County.

Ten suits by the George T. Stagg Company against the Frankfort Modes Glass Works, W. H. Lewis, W. F. Nickles, E. A. Bacon A. B. Bacon, the Silent Workers of King's Daughters Circle, Kate L. G. Banta and others, William Euler, J. D Nuchols, and Laura and William Quarles, and one suit by Laura Quarles and husband against the George T. Stagg Company. The suits were heard together, and judgments were rendered in each case against the George T. Stagg Company, and it appeals. Judgment in each case reversed, with directions.

John B Lindsey and T. L. Edelen, both of Frankfort, for appellant.

Leslie W. Morris and James H. Polsgrove, both of Frankfort, for appellees.

THOMAS J.

The appellant, George T. Stagg Company, a corporation, and plaintiff below, filed its separate petition in the Franklin circuit court against the several appellees, defendants in the first ten cases appearing in the caption, claiming to be the owner of a six-inch water pipe line running from a natural spring located about 2 1/2 or 3 miles north of the city of Frankfort to the northern corporate limits of the city, and alleging that the defendants in each of those suits who own separate lots or parcels of land through which or near which the pipe line ran had wrongfully and illegally tapped it, and were without right appropriating and using water therefrom on their respective premises, or that they were claiming the right to do so. Injunctive relief was sought against each of them to prevent those who were using the water from continuing to do so and to compel them to disconnect their respective service pipes and to abandon the use of the water.

In the suit against the defendant Nuchols, who claims the right to the use of the water for domestic purposes, an injunction was sought to prevent him from exercising his alleged right to tap the pipe, as it was claimed he was threatening to do.

The separate answers of the ten defendants denied that the plaintiff owned or held title to the six-inch water main, and claimed that each of them through whose lots it ran were the owners of it, and consequently had a right to tap it. Another paragraph relied upon the fact, as therein alleged, that each defendant and those through whom he claimed had been adversely using the water and appropriating it for domestic purposes for a period of more than 15 years next before the filing of the suit against him in such an open, notorious, hostile, and adverse manner as to acquire a title or right in and to the character of use of the water sought to be enjoined.

Still another paragraph seeks to invoke the defense of champerty, in that it is alleged, in each of the cases, that at the time the plaintiff acquired its alleged title to the water main in question the defendants were using the water in the adverse manner set out in the second paragraph of their respective answers. Appropriate pleadings put in issue the affirmative parts of the answers. The ten cases were consolidated in the court below, and after extensive preparation they were submitted, and the trial court dismissed each of the ten petitions, and from that judgment the plaintiff prosecutes this appeal.

The eleventh and last suit in the caption was brought in the Franklin circuit court by William Quarles and wife against the appellant in the other ten cases, George T. Stagg Company, to enjoin it from laying a six-inch pipe from the Frankfort and Owenton pike up Cove Spring branch so as to connect with a pipe running from a reservoir which is supplied with water from Cove Spring, and which spring and reservoir is now owned by the appellant, and has been owned by it and its vendors for a great number of years, the spring and a part of the ground covered by the reservoir having been acquired by its remote vendor, the city of Frankfort, in 1838. The grounds for the relief sought by the Quarles suit are that plaintiffs therein were the owners of the land upon which the pipe was being laid, and that the appellant, in attempting to lay it at that place, was doing so without the consent of the plaintiffs and was therefore a trespasser. The answer denied the ownership of the ground at that place by the plaintiffs therein, and asserted the defendant's right to lay the pipe at that particular place. That suit, after preparation, was heard with the other ten suits, and upon submission the court enjoined the defendant, as prayed for in the petition, and from that judgment it prosecutes an appeal, and in this court the record in the ten cases and that in the eleventh case are considered together, and will be disposed of in one opinion.

We will first dispose of the questions presented by the appeal in the first ten cases. The record as to them, although large, presents but few questions, and none of them, according to our view, of very great difficulty. Much labor has been saved by an agreement found in the record to this effect:

"It is stipulated and agreed to be true that on April 27, 1838, the date of the deed from John W. Smith to P. Swigert, etc., trustees of the town of Frankfort, to February 1, 1892, the date of the deed from the board of councilmen of the city of Frankfort to John T. Buckley, the city of Frankfort was the owner and in the possession of the Cove Springs and the land on which the same were and are situated, together with its appurtenances, and which are located at the head of Cedar Cove, about two miles northeast from the city of Frankfort, including the right of way for a water pipe main therefrom to the said city, and the six-inch water main mentioned in these actions was laid therein; which right of way extended from the reservoir inclosing said springs westwardly down Cedar Cove branch through the adjoining lands now claimed by the defendants William Quarles and wife to what was afterwards the land of L. Hord and wife, and now the property of Mrs. P. I. Railey, and thence in a southwest direction through said Hord or Railey land, which formerly belonged to Orlando Brown, Sr., known as Brown's bottom, and through the same in the same general course to the city of Frankfort; and that said right of way for said pipe line, and said pipe line are the same, the right to the use of which are in question in these actions."

Notwithstanding this stipulation, the title of the city of Frankfort to Cove Springs, the reservoir around it, and the pipe line from thence to the northern limits of the city of Frankfort is proven by evidence in the record. It is also established by the proof that the city held that property down to February 1, 1892, when it sold all of it, consisting of about 33 acres of land around the springs, all of which except one acre it had acquired since 1838, to John T. Buckley, trustee for appellant, and he, on December 28, 1899, sold and deeded the property to E. H. Taylor, Jr., Company, a corporation, and it, on the 25th day of August, 1904, by deed conveyed the property to John F. Normile, and he on the 20th day of October, 1904, conveyed it to the appellant, who has held it continuously since that time.

In the deed from the city of Frankfort to John T. Buckley, of date February 1, 1892, in addition to conveying the land which the city owned around the Cove Spring and the springs themselves, there is also conveyed "such interest as it [[[the city] may own or possess in the water pipe upon and leading from said above-described property to the end of the six-inch main; and hereby conveys, warrants and guarantees to the second party [Buckley], his heirs or assigns forever the right of way to and from said property and the right of entry and right of way for the purpose of laying, maintaining and repairing such water pipe and making necessary excavations for putting in new pipe from said Cove Spring property to the line of L. Hord at a point near the wooden bridge in the Frankfort & Peak's Mill Turnpike"; and also "such interest as the city may own or possess in the water pipe upon and leading from said property with guaranty to said Buckley of the right of way for ingress and egress, * * * together with all and singular the privileges and appurtenances thereto belonging, or in any wise appertaining." In the subsequent deeds from Buckley to the appellant the same property is conveyed.

It will thus be seen that there is no room to question the title of the appellant in and to the pipe line which it claims that the defendants were wrongfully interfering with by using or threatening to use water therefrom. That pipe line was first laid by the city directly after it acquired the Cove Springs property in 1838. A large part of the record is taken up with proving the title of each defendant to their respective lots. In none of the deeds from any of their vendors or remote vendors is there any effort to convey any interest in the pipe line through or adjacent to the lots except as to the defendant Nuchols, which will later receive our consideration.

It is insisted, however, by counsel for defendants that notwithstanding there is no mention made of the pipe in their deeds, that each of their conveyances had the effect in law and did as a matter of fact convey a perfect title to each of them to that part of the pipe running under or across their lots. Upon what ground this contention can be upheld is not made clear, and we must acknowledge our inability to recognize its soundness. All of the deeds, from the time the city acquired the property and laid the pipes, including those by which it acquired its right of way or easement for that purpose, down to that executed to the George T. Stagg Company, were immediately recorded in...