Louisville & N. R. Co. v. Covington

• Decision Date: 29 September 1866
• Citation: 65 Ky. 526
• Parties: Louisville and Nashville Railroad Company v. Covington, & c.
• Court: Kentucky Court of Appeals

65 Ky. 526

Louisville and Nashville Railroad Company v. Covington, & c.

Court of Appeals of Kentucky.

September 29, 1866

By deed dated February 11, 1836, E. M. Covington conveyed to the corporators of the Bowling Green Portage Railway Company certain rights of way, sixty feet wide, through a portion of the town of Bowling Green, and thence to Big Barren river upon the expressed condition that a railway should be completed thereon within three years, which condition was performed. The Louisville and Nashville Railroad Company having come into possession of the Portage Railway and all its rights of way, & c., by purchase, and having taken up the track, ceased to use and wholly abandoned the use of that part of said right of way which lies between Adams street and the town terminus, and having sold and conveyed a part of it next to Adams street to a private individual, for private uses, thereby cutting themselves off and preventing themselves from using any part of said right of way between Adams street and the town terminus; but the said Louisville and Nashville Railroad Company have continued to use the remainder of said right of way from Adams street to Big Barren river for the purposes and uses contemplated in the conveyance. The heirs of E. M. Covington sued for the entire right of way conveyed by him, alleging that the same had been abandoned, and that the Louisville and Nashville Railroad Company had no right to purchase or hold any part of it. Held --That the law imposed the additional condition upon the conveyance that the right of way should continue to be used for the purposes contemplated, and that a reversion would result from abandonment or non-user. That as to that part of the right of way from Adams street to the town terminus, the abandonment was complete, and plaintiffs were entitled to recover it. But, as to the remainder of the right of way, which has continued to be, and is still used for a railway, as contemplated in the conveyance, there is n forfeiture or abandonment, and that being so used Covington's heir?? have no right to question the validity of the conveyance to, or th?? title of, the present occupant.

APPEAL FROM WARREN CIRCUIT COURT.

J. R. UNDERWOOD, For Appellant,

CITED--

Civil Code, sec. 529.

Ib., secs. 530, 531.

Angell & Ames on Corporations, p. 191, sec. 195.

Ib., p. 891, sec. 773.

Ib., p. 899, secs. 776 and 777.

Acts 1835-6, p. 121.

Acts 1850-1, vol. 2, p. 442.

Acts 1853-4, vol. 2, p. 195.

Acts 1855-6, vol. 1, p. 188.

S. D. BLACKBURN, For Appellees.

OPINION

WILLIAMS JUDGE.

Covington and others, heirs of their deceased ancestor, E. M. Covington, brought suit against the Louisville and Nashville Railroad Company and George Lehman to recover the lands granted by their ancestor to Pitts, Vanmeter, McReery, and Skiles, by deed dated February 16, 1836. Said grantees were corporators by an act of the Legislature, approved five days before the date of said deed, incorporating the Bowling Green Portage Railway Company. Said deed conveyed the right of way, and sixty feet for the same, through several lots in Bowling Green, and through the land between the town and Big Barren river, and a lot, containing some three acres, for depot purposes on the river, and another lot of three acres, adjoining the depot lot, for mill purposes--the road-bed and depot upon the condition that a railway should be built within three years; the mill lot upon condition that a steam merchant mill should be erected within three years.

The Bowling Green Portage Railway Company having been duly organized under the act of incorporation, said Pitt, Vanmeter, McReery, and Skiles, January 16, 1837, conveyed said right of way, lands and lots, to it.

The portage railway seems to have been erected in due time; a costly steam merchant mill was also, within the period designated, completed, but was soon thereafter destroyed by fire. Another was then erected at a cost of several thousand dollars, and it was likewise unfortunate; and also had seven thousand dollars' worth of lumber so destroyed.

The corporation seems to have kept up its organization, having a president, and perhaps other officers, but likely not prospering, when Skiles, having purchased a very large portion of the stock, and the grantor having died, these same heirs filed a suit against Skiles, October 28, 1851, asserting a non-compliance with the conditions, a forfeiture of the company's rights under said deed, and asking its cancelment, and that the possession of the lots and land conveyed be adjudged to them.

This was refused by a final judgment, July 17, 1852, and their petition dismissed absolutely.

October 18, 1853, Skiles and wife, by deed, conveyed the Bowling Green Portage Railway, with all its property, & c., to the Louisville and Nashville Railroad Company, which company have...