Pollock v. Maysville & Big Sandy R. R. Co.
| Decision Date | 28 January 1898 |
| Citation | 103 Ky. 84 |
| Parties | Pollock v. Maysville & Big Sandy R. R. Co. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LEWIS CIRCUIT COURT.
W. C. HALBERT FOR APPELLANT.
WADSWORTH & COCHRAN FOR APPELLEE.
JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.
In the original petition in this action filed by appellant against appellee, October 8, 1889, it is substantially alleged: That the plaintiff was the owner and in possession of a house and lot of ground in the town of Concord, Lewis county, Kentucky, the same being on the south side of Second street, abutting thereon, in the lower or west end of said town, more fully described in a deed from A. J. Harrison, sheriff of Lewis county, to him, and made part hereof. The said deed is dated May 23, 1873, and recorded in the Lewis county clerk's office, and that plaintiff has been possessed of said house and lot ever since that date, until the date of the wrongs and trespass complained of. It is further averred that said town of Concord is incorporated, and has been for forty years last past, its streets having been laid out and dedicated to the public all that time to be used and enjoyed by the citizens and general traveling public; said Second street being one of them, which runs on the north side of plaintiff's lot aforesaid, and abuts thereon, and to the free and unrestricted use of said street plaintiff has an incorporeal franchise and right to same; and he charges that the defendant without right, during the year 1887, took possession of said Second street and appropriated it to its own use, and also a portion of said plaintiff's lot of ground adjoining and abutting on said street, and in violation of plaintiff's right and against his consent built and constructed its railroad track and bed for the entire distance through and along said Second street, and through and along the north side of plaintiff's lot of ground abutting on said street, and deprived him of a strip of his said lot of ground ____ feet wide and ____ feet long, excavating the ground up to and within less than two feet of his dwelling house situated thereon, making it liable to tumble down at any time and rendering it useless, and thus destroying his franchise and depriving him of ingress and egress to and from said house and lot by way of said Second street, and thus depriving his family and tenants from the use of said street as a passage for any and all purposes whatever, without great risk, danger and inconvenience, and that said defendant is still in possession of said Second street and said strip of ground against plaintiff's right; that plaintiff has ever since purchasing said house and lot in 1873, rightfully used said street as an easement to and from said house and lot, without let or hindrance, until defendant as aforesaid entered upon same and appropriated it to its own exclusive use and emoluments, and to plaintiff's great damage and inconvenience; and in addition thereto said defendant through its contractor, hands and servants dug up his said ground and lot, tore down his fences around same, destroyed his damson plum trees and scions and dug holes and planted telegraph poles on said lot, some thirty feet inside or about that distance from the line of its road-bed, and his lot being on sidling ground the cut and excavation made by defendant for its track or road is constantly causing his said lot or ground to slip and fall in and thus injuring the remainder of said lot and ground all to plaintiff's damage in the sum of three hundred dollars, for which he prays judgment.
On the 25th of January, 1892, the defendant filed its answer. The answer denied sufficient knowledge or information to form a belief concerning plaintiff's allegations that he is the owner and in possession of the house and lot mentioned in the petition, and a similar denial is made as to his possession and as to his lot abutting on said street. It is also denied in substance that they did any of the acts complained of wrongfully or without right.
On the 18th of January, 1894, the plaintiff filed an amended petition, and corrects the original petition and avers in substance, that he purchased and took possession of said house and lot long before the time stated in his original petition, to-wit., on or about the ____ day of 1861, and he alleges in the amended petition that he purchased the said house and lot of Socrates Holbrook in the year 1861, who had purchased it at a sheriff's sale made by Seth Parker, sheriff of Lewis county, Kentucky, under a writ of fieri facias, which issued from the clerk's office of the Lewis Circuit Court in favor of M. E. Reeves & Co. against the estate of Jas. W. Brown, et al, November 16, 1860, and sold on the third Monday in January, 1861, and then and there purchased by said Holbrook and by him sold and transferred to this plaintiff, and the deed referred to was made by A. J. Harrison, sheriff of Lewis county, in 1873, to this plaintiff; but plaintiff avers that he took immediate possession of said house and lot and has had it in his possession ever since his purchase from Holbrook, claiming and holding the same as his own against the defendant and the whole world under the purchase aforesaid, until the year 1887 when the defendant unlawfully and without right and against the will, consent and remonstrance of plaintiff, and with force and arms entered upon said lot and then and there committed the wrongs complained of in said plaintiff's original petition; and plaintiff now wishes to correct that allegation in his original petition wherein he says defendant built and constructed its railroad track and roadbed for the entire distance through and along said Second street, and through and along the north side of plaintiff's lot of ground, abutting on said street, and for connection states that defendant did not enter said Second street with its roadbed until it passed through said lot, and by reason of the said railroad track passing through said lot it was cut into two parcels, leaving about one-third between the railroad track and said Second street and the balance of the said lot above or south of the railroad track on the hillside with the house and improvements thereon, thus being entirely cut off and deprived of any ingress and egress to and from said Second street in the town of Concord, it being impossible for him or his tenants to cross from one part of said lot to another, or to go from the said house to the public highway, street or town with wagon or team or other vehicle, thus rendering said house and lot almost worthless to him to his damage as set out in his original petition. Wherefore he prays as in his original petition, and for all proper relief.
On the 24th day of May, 1894, the defendant filed its answer to the amended petition, and by agreement the affirmative allegations of said answer were traversed of record.
The first paragraph of the aforesaid answer is a denial of sufficient knowledge or information to form a belief concerning the alleged purchase and holding set up in the amended petition. It also contained the denial that defendant unlawfully or without right, or against the will, consent or remonstrance of plaintiff, did the acts complained of. It is a further denial of the allegations that the construction of said railroad deprived plaintiff of any ingress or egress to the said Second street or of the town of Concord, or made it impossible for him or his tenants to cross from one part of said lot to another or to go from the said house to the public highway, street or town with wagon or team or other vehicle, or that the house or lot was thus rendered almost worthless or useless to him.
The second paragraph reads as follows: "The defendant for further answer to plaintiff's petition, says that before the...
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