Louisville & N.R. Co. v. Smith

• Citation: 101 S.W. 317,125 Ky. 336
• Parties: LOUISVILLE & N. R. CO. ET AL. v. SMITH.
• Decision Date: 17 April 1907
• Court: Court of Appeals of Kentucky

101 S.W. 317

125 Ky. 336

LOUISVILLE & N. R. CO. ET AL. v. SMITH.

Court of Appeals of Kentucky.

April 17, 1907

Appeal from Circuit Court, McLean County.

"To be officially reported."

Action by George Smith against the Louisville & Nashville Railroad Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Wilbur F. Browder, Henry L. Stone, Benjamin D. Warfield, and Reuben A. Miller, for appellants.

Wm. B Noe and Walter G. Newton, for appellee.

O'REAR C.J.

The Owensboro & Russellville Railroad Company was chartered in 1867 and empowered to run its line of railroad through McLean county. It was authorized to acquire a right of way of not more than 60 feet in width. The railroad was built about 1868. The right of way extends through the town of Livermore in McLean county. In 1872 W. J. Rowan by deed conveyed to the Owensboro & Russellville Railroad Company a strip of ground in the town of Livermore, containing about .02 of an acre being a strip about 27 feet wide along the edge of Rowan's lot. This strip constituted a part of the right of way upon which the road was built, the right of way at that point being not more than 60 feet wide. Subsequently the Owensboro & Russellville Railroad Company's title was conveyed to the Owensboro & Nashville Railway Company, the present owner of the railroad line. The railroad tracks did not occupy the whole of the right of way. Rowan inclosed in the boundary of his lot a part of the strip which he had conveyed to the railroad company, but which was unoccupied by the railway tracks. Subsequently, in 1887, he sold and conveyed the lot so inclosed to appellee Smith, who has continuously since claimed and used the whole lot to the extent of his inclosure adversely to the whole world. In 1903 the railroad company brought this action in ejectment against Smith to recover that part of the right of way which was within his inclosure, being a strip of land in the town of Livermore, beginning 848 feet north of milepost 21, running thence parallel with appellant's railroad track in said town on the east side of the track, a distance of 163 feet and being 9.2 feet wide at the south end, and 11.3 feet wide at the north end of the strip. Defendant, George Smith, pleaded the 15 years' statute of limitation in bar of the plaintiffs' right of recovery. The question to be decided is: Does the statute operate as against a railroad company concerning its right of way?

It is claimed by appellant that the question is an open one in this state, and that upon principle, and authority elsewhere, such statutes are not applied to adverse possession of railway rights of way by abutting landowners or others. The trend of the argument is that with respect to its right of way the railroad company owns only an easement, which it holds on behalf of the general public; that it could not alienate, voluntarily, its right of way, so as to divert its use to other purposes than those to which it was dedicated, and because of the same legal restraint could not do so involuntarily. There are a number of cases from other jurisdictions which hold to this doctrine, though we have been unable to discover, either by their examination or otherwise, a sufficient reason for a refusal to apply a plain statute to such cases, which by its terms admits of no such exception. It is said that the statutes of limitation raise the presumption of a previous grant from the rightful owner to the person in adverse possession, which has become lost, and that where the presumption cannot exist, as where the rightful owner could not legally have executed such grant, the presumption fails, and the statute, unsupported by its reason, cannot apply. Anciently the plea of limitation was based upon the suggested presumption. It was a fiction of the law invented to relieve from frequent hardships resulting from the inevitable loss of evidence by death and the lapse of time. But the modern statute of limitation does not rest upon that, or any other fiction. It is the fiat of the Legislature, which cuts off the right to maintain the suit. It is founded in no sense upon the ancient fiction of a supposed grant. It rests upon the wise public policy that favors peace, the settlement of disputes out of court, and the repose of conditions which the parties suffered to remain without question so long as to indicate an acquiescence in them by all concerned. Nothing is presumed, or required to be presumed, in aid of the statute. When the circumstances admit of its application, it is all-sufficient that the party relying upon it invokes it.

Cases in this court are cited as opposed in effect to this reasoning, where we have held that neither an individual nor the public could acquire an easement in the nature of a passway, along or across a railway right of way ( Brown's Adm'r v. L. & N. R. R. Co., 97 Ky. 228, 30 S.W. 639; Embry v. L. & N. R. R. Co., ...