Louisville, St. L. & T. Ry. Co. v. Liebfried

• Decision Date: 19 December 1891
• Citation: 17 S.W. 870,92 Ky. 407
• Parties: Louisville, St. L. & T. Ry. Co. v. Liebfried. Same v. Hess et al.
• Court: Kentucky Court of Appeals

17 S.W. 870

92 Ky. 407

Louisville, St. L. & T. Ry. Co. v. Liebfried.

Same v. Hess et al.

Court of Appeals of Kentucky.

December 19, 1891

Appeal from circuit court, Daviess county.

"To be officially reported."

Separate actions of ejectment by Jacob Liebfried and John Hess and others against the Louisville, St. Louis & Texas Railway Company. From a judgment for plaintiffs in both cases defendant appeals.

Bennett J.

The appellees own certain land in Daviess county that abuts on a public highway, and by virtue of that fact they own that part of said highway upon which the appellant constructed and is now operating its railroad. The appellees instituted their respective actions of ejectment to recover the part of the highway so taken by the appellant. The lower court having decided that the appellees, as against the appellant, were entitled to the possession of said land, it has appealed from that judgment. The appellees were, at the time the appellant entered upon said land, the owners of it, which ownership was subservient to the public right of way; but they were never divested of the right to the soil, but only to the surface use for the benefit of the traveling public alone; but, as said, the fee remained in the appellees, and whenever the right to the use of the surface ceased the right to said use reverted to the appellees, and they, at all times, had the right to the use of the soil in any way that suited themselves, if not inconsistent with the right to the surface use by the traveling public. And they had the right to take any appropriate action against any person or corporation to prevent their interference with their right to the soil or its use; and to recover the land occupied by the highway from any person or corporation that, without right, had seized or appropriated it to their own permanent use, unless the corporation claiming the right was empowered to exercise it by the specific legislative grant, or by a necessarily implied power resulting from the specific terms of the grant. The supreme court of Pennsylvania, in the case of Phillips v. Railroad Co., 78 Pa. St. 180, is so clear and explicit upon the very subject here involved, and so well sustained by the authorities, we make the following quotation from it as fully expressing our views: "The land of the plaintiff was subservient only to the public right of way; of the right to the soil he was never divested but only of the...