Richmond, N., I. & B.R. Co. v. Thomas

• Decision Date: 11 December 1897
• Citation: 43 S.W. 466
• Parties: RICHMOND, N., I. & B. R. CO. v. THOMAS et al.
• Court: Kentucky Court of Appeals

43 S.W. 466

RICHMOND, N., I. & B. R. CO. v. THOMAS et al.

Court of Appeals of Kentucky.

December 11, 1897

Appeal from circuit court, Estill county.

"Not to be officially reported."

Action by Eliza Thomas and others against the Richmond Nicholasville, Irvine & Beattysville Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Bullitt & Shields, Riddell & Riddell, and John Bennett, for appellant.

GUFFY J.

This action was instituted in the Estill court of common pleas by the plaintiffs against the appellant, seeking to recover $1,000 damages for injury, etc., to a tract of land owned and possessed by them in Estill county; they holding the same as widow and heirs at law of Allen Thomas. It is alleged; in substance, in the petition, that the defendant, with force and arms, about March, 1890, entered on plaintiffs' land and forcibly and against their consent dug up and created a railroad way thereon, and dug up and ditched plaintiffs' said farm, and forcibly and unlawfully took possession of a strip 100 feet wide of said farm, entirely through plaintiffs' said farm, at least 1,000 yards long, and dug same up, and appropriated it to its own use, and tore down and destroyed plaintiffs' fences, trees, and grass, and blasted rocks and dirt over plaintiffs' fields, and tramped and hauled over them, to plaintiffs' great damage, in the sum of $1,000. The defendant admits that Allen Thomas, deceased, was the owner of the land named, until he donated part thereof to defendant for the purpose of building a railroad thereon, and denies that the plaintiffs are the owners of the strip upon which said road is constructed and being constructed, and denies that plaintiffs own any part of said strip, and, in short, denies the unlawful taking, and denies that it tore down or destroyed plaintiffs' fences or blasted rocks or earth over plaintiffs' lands, or tramped or hauled over them, and denies that it injured plaintiffs in the sum of $1,000. By way of counterclaim, it alleged that the said Allen Thomas, in his lifetime, by a writing obligatory, gave it the right of why over a certain boundary of land, which is the land used (being 100 feet in width, 50 feet lying on either side of, and adjacent to and parallel with the center of, said roadway, and containing 6.98 acres), and asked that the plaintiffs be adjudged to convey the same to the defendant (now appellant), and moved a transfer of the case to equity, which...