Goodloe v. City of Richmond

• Decision Date: 10 October 1933
• Citation: 250 Ky. 608,63 S.W.2d 785
• Parties: GOODLOE v. CITY OF RICHMOND ET AL.
• Court: Kentucky Court of Appeals

63 S.W.2d 785

250 Ky. 608

GOODLOE v. CITY OF RICHMOND ET AL.

Court of Appeals of Kentucky

October 10, 1933

Appeal from Circuit Court, Madison County.

Action by George W. Goodloe against the City of Richmond and others. A demurrer to the petition was sustained, and plaintiff appeals.

Reversed and remanded.

Ross &amp Ross, of Richmond, for appellant.

J. J Greenleaf, John Noland, and O. W. Hisle, all of Richmond, for appellees.

RICHARDSON Justice.

The decisive question involved herein is the property right of the owner of lots abutting on a street, with the consent of an intervening abutting owner, to construct below the surface of the street, between the lots of the two, a water line for the use of the abutting owner's property.

In August, 1930, George Goodloe was the owner of certain lots in the city of Richmond; one abutting on the south side of Water street, the other abutting on South Main street. The lots extend entirely through the square on which they are located. Main street is about 200 feet south of Water street. On his lot abutting Water street he has a large supply of sulphur water. On the north end of his lot, abutting on Main street he has a business. He constructed a water line from his lot on Water street, under Water street, across the land of W. L Arnold; thence under Main street onto and over his Main street lot to his place of business thereon, for the purpose of conveying the water from the source of supply to his place of business.

The pipe conveying the water from his Water street property to his Main street property is about 2 feet under the surface of Water street. On reaching Main street, he drove the pipe under it about 5 feet below the surface onto his Main street lot. Before the construction of his water line, he secured the permission of W. L. Arnold to construct it, on his land which abutted on both Main and Water streets, opposite the lots of Goodloe.

In September, 1930, the city of Richmond and the Richmond Water & Light Company, a corporation, filed an action against Goodloe seeking to enjoin him from using his water line to convey water to his business on his Main street lot. A temporary order was granted restraining him from excavating the streets and laying the water line and occupying the streets therewith. The circuit court dissolved the restraining order and permitted him to continue the use of his pipe line to supply his business. Thereafter a motion was made before a member of this court for a temporary injunction. Before this motion was passed on, the city of Richmond, by its council, ordered the action dismissed as to the city. Thereafter, the member of this court before whom this motion for a temporary injunction was made delivered an opinion overruling the motion. On the convening of the court below, the plaintiffs dismissed their action without prejudice. In March, 1932, the city cut and severed the water line at a point "where the lot abuts the north side of Water street."

This action was instituted by Goodloe to require the city to permit him to connect his water line where it had been severed by the agents of the city, and to recover of it and its agents, who at its direction engaged in cutting the water line, damages of $5,000, including $50, the approximate cost of restoring the water pipe, for depriving him of the use of the water from March 14, 1932, until the line is connected at the point where it was cut. He charges that the water line is under the street and so maintained as not to be an unreasonable interference with the public's use for travel. Also that the city owns the waterworks from which water is furnished to its inhabitants, and that its motive in cutting his line was to compel him to buy water of the city. He sets up the issuance and dissolution of the temporary injunction and the disposition of the motion by a member of this court as res judicata. He also alleges the city's acts relative thereto were a waiver of its objection to the use and maintenance of the water line. He charges that the city is without right to deprive him of the use of the water on his property, and that its action in authorizing the cutting of the water line on Water street was wrongful and deprived him of his property rights and property in his water supply. He sought a temporary injunction prohibiting the city from interfering with his repairing the water line, and using it and the water for private purposes. Certain motions to strike from the petition and to strike certain exhibits from the record were entered by the city. In view of the conclusions we have reached it is unnecessary to consider the action of the court relative thereto. Nor is it necessary to give consideration to his plea of res judicata, except to say it is insufficient.

A general demurrer was filed to the petition and sustained by the court. Goodloe declined to further plead and his petition was by order of the court dismissed, from which he appeals. The order permitted Goodloe, if he desired, to remove from under the streets the pipe used in the construction of the water line. with restrictions as to excavating for that purpose. It should be observed that Goodloe nowhere alleges in his petition that he owns to the center of the streets on which his lots abut. Nor are any allegations in the petition stating that he owns to the center of the streets across which his pipe was laid. The metes and bounds of his lots are not set out. It is alleged, however, that his property "abuts" on the streets, accompanied by the allegation that the water line was constructed across and under the property of W. L. Arnold, which abuts on the south side of Main street and also the north side of Water street, opposite Goodloe's land, with Arnold's consent.

The common law of England was, that land bounding on a highway, water course, or a street, conveyed without reservation, the grantee owned the fee to the center thereof, and "has a right to all above and under ground except only the right of passage for the King and his people," and may exercise all rights of ownership not inconsistent with the public's right of passage. Goodtitle ex dem. Chester v. Allen, 1 Bur. 133, 17 Rul. Cas. 549, 12 D. Kenyon 427.

Judge Cooley, in his work on Constitutional Limitations (7th Ed.) page 808, states: "As a general rule the laws for the exercise of the right of eminent domain, do not seem to go further than to appropriate the use, and the title in fee still remains in the original owner. In the common highways the public has a perpetual easement, but the soil is the property of the adjacent owner, and he may make any use of it which does not interfere with the public's right of passage, and the public can use it only for the purposes usual with such ways."

In Lewis on Eminent Domain, § 449, it is written: "Upon the principles that statutes conferring a compulsory power are to be strictly construed, it follows that where the estate taken is not defined, only such an estate or interest will vest as is necessary to accomplish the purpose in view; where the easement is sufficient no greater estate can be taken. Thus, under authority to take land for a highway, railway or other like use, only an easement can be acquired, for no greater estate is necessary."

In McQuillin on Municipal Corporations (2d Ed.) vol. 4, § 1447, page 134, it is written: "If the abutting owner has title thereto, he may use the space under the street to the center thereof the same as his other property, so long as he does not interfere with the superior right of the municipality below the surface for sewers and other public underground facilities. On the contrary, if the fee of the street is in the municipality, it may require abutting owners to obtain a permit before excavating under a street, * * * and may require the payment of a reasonable rental therefor. * * * It seems that the municipal authorities cannot arbitrarily refuse such a permit to the abutting owner."

This statement of McQuillin is sustained by Allen v. Boston, 159 Mass. 324, 34 N.E. 519, 38 Am. St. Rep. 423; Tacoma Safety Deposit Co. v. Chicago, 247 Ill. 192, 93 N.E. 153, 31 L. R. A. (N. S.) 868, 20 Ann. Cas. 564; State v. Hoboken, 33 N. J. Law 280; Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358; Farnsworth v. Rockland, 83 Me. 508, 22 A. 394; Dell Rapids Mercantile Co. v. Dell Rapids, 11 S.D. 116, 75 N.W. 898, 74 Am. St. Rep. 783; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422; Kress & Co. v. Miami, 78 Fla. 101, 82 So. 775, 7 A. L. R. 640; Appleton v. New York, 219 N.Y. 150, 114 N.E. 73, 7 A. L. R. 629.

The presumption is that the title and legal possession of the owner of the land abutting on a water course, highway, or street, extends to the center thereof, subject only to a public easement. Trustees of Hawesville v. Lander, 8 Bush, 679; Blalock v. Atwood, 154 Ky. 394, 157 S.W. 694, 46 L. R. A. (N. S.) 3; Henry v. Board of Trustees, etc., 207 Ky. 846, 270 S.W. 476; City of Covington v. State Tax Commission, 231 Ky. 606, 21 S.W.2d 1010; Friedman v. Snare & Triest Co., 71 N J. Law 605, 61 A. 401, 70 L. R. A. 147, 108 Am. St. Rep. 764, 2 Ann. Cas. 497; Rich v. City of Minneapolis, 37 Minn. 423, 35 N.W. 2, 5 Am. St. Rep. 861; Western Union Telegraph Co. v. Williams, 86 Va. 696, 11 S.E. 106, 8 L. R. A. 429, 19 Am. St. Rep. 908; White v. N.C. Railway Company, 113 N.C. 610, 18 S.E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639; Kent's Commentaries 432; Dell Rapids Mercantile Co. v. Dell Rapids, 11 S.D. 116,...