Sandy River Coal Co. v. Champion Bridge Co.

• Decision Date: 19 April 1932
• Citation: 243 Ky. 424
• Parties: Sandy River Coal Company v. Champion Bridge Company et al.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 424

Sandy River Coal Company v. Champion Bridge Company et al.

Court of Appeals of Kentucky.

Decided April 19, 1932.

1. Abandonment. — "Abandonment" of property requires concurrence of intention to abandon and actual relinquishment.

"Abandon" means to relinquish or give up, with the intent of never again resuming or claiming one's rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to

desert. "Abandonment" means the relinquishment or surrender of rights or property by one person to another; a giving up; a total desertion. It includes both the intention to abandon and the external act by which the intention is carried into effect.

2. Abandonment. — Mere absence from and nonuser of property do not prove intention to abandon, although continued unexplained long enough, they may be inconsistent with any other hypothesis.

3. Abandonment. — Doctrine of abandonment does not apply to fee simple

4. Easements. — Nonuser alone, at least short of limitation period, cannot prove abandonment of right of way created by conveyance thereof by servient owner.

5. Easements. — Absent statute, mere temporary nonuser of rail or tramway roadbed, granted for coal mining purposes, does not constitute abandonment thereof.

6. Easements. — Easement held under deed from servient owner cannot be terminated, except by servient owner's continuous adverse use wholly inconsistent with dominant owner's right, for limitation period.

Such easement cannot be avoided by pleading and proof of nonuser in any manner except by adverse holding amounting to disseisin or ouster for the statutory period of limitation.

7. Easements. — That its tramway might be constructed elsewhere did not deprive dominant owner of right of way, nor authorize county to construct bridge on it.

8. Easements. — County building bridge on plaintiff's right of way, held under deed giving right to construct tramway, could not complain of plaintiff's intention to erect standard gauge railroad thereon.

County, in so far as plaintiff was concerned, had no color of title to the right of way, and was a mere trespasser thereon, and could not insist that any particular construction should be given the deed granting the right of way, or that plaintiff was not authorized by it to construct on its right of way a standard gauge or other railroad.

Appeal from Johnson Circuit Court.

KIRK & WELLS for appellant.

WHEELER & WHEELER and FRED MEADE for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

The Greasy Creek Cannel Coal & Tramway Company in 1896 was the owner of a boundary of mineral land located below the mouth of Two Mile Creek in Johnson county, Ky. The land was located about ten miles from Whitehouse, Ky., the terminus at that time of the C. & O. Railroad Company. It obtained deeds to a right of way from its mineral land to Whitehouse, and thereafter erected a narrow gauge rail or tramway on its right of way, and began to mine, transport, and sell the coal on its property. In 1902 the C. & O. Railroad Company extended its main line of railroad to Offutt, Ky., which was the nearest point of connection of its narrow gauge railroad, and the main line of the C. & O. Railroad Company.

The Sandy River Coal Company acquired in 1916 the title to the mineral land, right of way, and narrow gauge railroad of the Greasy Creek Cannel Coal & Tramway Company. The Sandy River Coal Company during that year leased to Ayers & Lange, for a period of twenty years, its narrow gauge railroad and all of its property which was used in connection with its mine. Their lease covered all No. 4 or cannel coal on the boundary of land. By the terms of the lease, Ayers & Lange acquired the title to the steel rails and rolling stock used in the operation of the narrow gauge railroad with which they transported the products of the mine to Offutt, Ky. They operated the mine and disposed of its products until 1925, when their lease was canceled with the consent of the Sandy River Coal Company. They sold and disposed of the steel rails and rolling stock owned and used by them in the operation of the tramway. The purchasers thereof removed the same according to their desires. After their lease was canceled, the Sandy River Coal Company kept in its employment an agent whose duty it was to look after its property, including the right of way on which the tramway had been constructed and operated. That portion of the right of way on which it had been constructed and now in controversy was acquired by the Greasy Creek Cannel Coal & Tramway Company by a deed, dated July 13, 1896, of G.W. Ward. The conveyance from Ward to it recites that for $165 cash he sold, granted, and conveyed to the Greasy Creek Cannel Coal & Tramway Company, its successors, vendees and assigns, the right to construct, maintain, operate, and keep in repair, a rail and tramway over the land therein described, "together with the full right to enter upon his land, and construct, maintain and operate by its agents, servants and employees, and its successors, vendees and assigns, the rail and tramway."

On account of the unusual topography of the Ward land, to reach the coal land, there was only one space on it on which the right of way could be located and the tramway constructed. At this point on its right of way Johnson county by and through its officials, and the Champion Bridge Company, by its agent, G.T. Sparks, began to erect a bridge across the creek on the Ward land, using its right of way and a rock wall that had been built for that purpose, without the consent of the Sandy River Coal Company. It is conceded that this portion of the right of way was constructed by the Sandy River Coal Company's predecessor in title and uninterruptedly had been used by it, and Ayers & Lange, as lessees of appellant, for tramway purpose. There was at that time, and now, no highway leading to or from the tramway. To use the bridge after it shall have been completed, it will be necessary and required by those who may use it not only to use the appellant's right of way where the bridge is constructed, but its right of way as it approaches and leaves the bridge.

The Appellant's agent protested to the county officials against the use of its right of way on the Ward land for county bridge and road purposes. Disregarding his protest, the construction of the bridge was begun by the Bridge Company and its agents under a contract with, and at the direction of, the fiscal court of Johnson county.

The Sandy River Coal Company instituted an action against Johnson county and the Champion Bridge Company, wherein it sought an injunction against them to prevent their use of its right of way on the Ward land. Appropriate pleadings were filed, evidence was taken, and on submission the court dismissed the petition. The Sandy River Coal Company appeals.

The deed of Ward to the Greasy Creek Cannel Coal & Tramway Company was recorded in the clerk's office of Johnson county on the 14th day of July 1896. Thereafter Lloyd G. Meade became the owner of the Ward land on which the right of way was located. The county claims that it obtained oral permission of Meade to enter upon and construct a bridge on the right of way. It concedes the existence and the provisions of the deed of Ward to the Greasy Creek Cannel Coal & Tramway Company, and the appellant's ownership of the right of way by virtue of the Ward deed. To escape the effect of the Ward deed, the county and the Champion Bridge Company rely upon abandonment, and insist that the appellant can locate and construct its right...