Louisville, St. L. & T.R. Co. v. Rudd

• Decision Date: 10 April 1895
• Citation: 30 S.W. 604
• Parties: LOUISVILLE, ST. L. & T. R. CO. v. RUDD.
• Court: Kentucky Court of Appeals

30 S.W. 604

LOUISVILLE, ST. L. & T. R. CO. v. RUDD.

Court of Appeals of Kentucky.

April 10, 1895

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Helm & Bruce, for appellant.

Sweeney, Ellis & Sweeney, for appellee.

PRYOR, C.J.

This is an action of ejectment to recover a small strip of land on which the defendant's railway is located. It seems the railway company constructed its road over the land of the appellee, to which he held the legal title as trustee for his sister. It was induced to locate its line on this land by the brother of the appellee, who in fact claimed to be the owner, and executed to the appellant a deed purporting to pass the title. There is no proof whatever that the appellee as trustee, or the beneficiary (his sister), knew of this conveyance, or had knowledge of the fact that the roadbed was on this land, but, on the contrary, it appears from the undisputed facts they were nonresidents, and were in entire ignorance of the fact as to the location of the road. While it does appear strange that the brother should have sold this right of way and the road be constructed for several years, and yet the appellee be entirely ignorant of the fact that the road was on his land, yet the proof is uncontradicted on this point, and the court below has so adjudged. In fact, there is no evidence that the brother who sold this land had even the possession of it, or was exercising acts of ownership over it; and hence we find this appellant building its road on land to which it had no title or right of entry, and in the absence of any proof showing an acquiescence on the part of the owner in its construction, or any conduct on his part that would work an estoppel, and under such circumstances the fact of this road being used by the public as a means of travel cannot justify the wrongful entry or defeat the recovery by the real owner. See Railway Co. v. Hess, 92 Ky. 407, 17 S.W. 870. Judgment affirmed.