Kamer v. Bryant, Etc.
| Decision Date | 26 May 1898 |
| Citation | 103 Ky. 723 |
| Parties | Kamer v. Bryant, Etc. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.
LANE & BURNETT FOR APPELLANT.
ARTHUR M. RUTLEDGE FOR APPELLEE.
In 1874 the Louisville Rock & Lime Co. being the owners of about six acres of land on which there was a stone quarry, built a switch from the Narrow Gauge railroad to the quarry, and used this switch track to carry out its rock taken out.
On December 29, 1875, the Rock & Lime Co. conveyed to Hahn & Ferrell a portion of the six acres, being in two pieces, one on the east end of the six acres and one on the west end, thus leaving a central portion of about three acres still owned by the Rock & Lime Co. unsold.
The habendum clause in the deed to Hahn & Ferrell reads: "To have and to hold the two before described lots of ground and the improvements thereon, and the appurtenances and privileges thereunto belonging unto the said W. P. Hahn and L. H. Ferrell."
The consideration recited is that Hahn & Ferrell were corporators of the Rock & Lime Co., and had paid certain sums for the company and desiring to withdraw from the corporation, took the two pieces of land as their amount due them.
The switch above mentioned as it then existed lay across the northeastern corner of the three acres, reserved by the Rock & Lime Co.
Hahn & Ferrell, after this deed to them, continued to operate the quarry, and using the switch over the land of the Rock & Lime Co., for some years. Hahn & Ferrell sold the eastern track, and it was sold to various parties, who all continued to operate the quarry, and use the switch till December 5, 1889. The owner of a part interest died, and the quarry was not operated for some years, by reason of some litigation, concerning the quarry or settlement of some matters of partnership.
The full title to this eastern track is in appellees by regular deeds of general warranty, and their title to the land itself is not questioned.
Some time after the deed by the Rock & Lime Co. to Hahn & Ferrell, the company built another switch for its use on the land reserved, and owned by it, west of the one used by Hahn & Ferrell.
In 1890 appellant become the owner of the three acres, not sold by the Rock & Lime Co. to Hahn & Ferrell, by deed from the Rock & Lime Co..
In 1894, after the litigation about the eastern quarry, now owned by appellees, had been settled, the appellant begun negotiations with the appellees for the purchase of their quarry, but they failed to agree upon the price. Thereupon appellant took up several of the rails of the switch track and built a fence across same, thus preventing its use, and also the use of the quarry. This fence was built on the land of appellant.
Appellees brought this action seeking an injunction against the maintenance of the fence, as well as damages, by reason of its erection. Appellees claim the right to use the switch track to their quarry as an appurtenant and improvement of the quarry, and that this easement passed to them by the deed of the Rock & Lime Co. to Hahn & Ferrell in 1875, as well as by prescription.
This position of appellees was denied as to the fact and legal effect of the deed granting this easement.
The damage was denied, although the obstruction of the switch track was not denied.
On these issues proof was taken, and on trial the court granted a perpetual injunction, and gave judgment for $200 damages.
From that judgment this appeal is prosecuted.
The proof clearly shows that this switch was used continuously from the date of the deed to Hahn & Ferrell in December, 1875, up till December, 1889, when the litigation begun, the...
To continue reading
Request your trial