Transylvania University v. City of Lexington

• Decision Date: 10 September 1842
• Citation: 42 Ky. 25
• Parties: Transylvania University v. City of Lexington.
• Court: Kentucky Court of Appeals

42 Ky. 25

Transylvania University v. City of Lexington.

Court of Appeals of Kentucky.

September 10, 1842

Public Highways. Easements, & c.

ERROR TO THE FAYETTE CIRCUIT.

Hickey for plaintiff

Robinson & Johnson for defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

Case stated.

THE grounds of Tranyslvania, surrounded by open streets were also formerly divided by Third street, which once separated that portion of the now continuous lawn, on which the buildings of the preparatory department stand, from the more elevated site of the College edifice. In 1831, prior to the erection of the latter structure, the Trustees of the University obtained from the Trustees of the then town of Lexington, their consent to the occlusion of so much of said street as divided the College grounds, with the proviso, that it should be again opened " whenever, in the opinion of (the) Board (of the Trustees of Lexington) the interest of the town (should) require it to be so opened. " It was accordingly closed, and the College edifice was then erected on the highest point of an area of unbroken continuity.

To ratify and establish the said agreement for closing a portion of Third street, the Legislature of Kentucky, in 1835, enacted the following statute:

" WHEREAS, it hath been represented to the present General Assembly, that to connect the grounds belonging to Transylvania University, in the city of Lexington, that so much of Second street as passes between the lot on which Morrison College stands, and the lot on which the present and former buildings of Transylvania University were erected, should be closed and discontinued; and for the purpose that the Trustees of said city hath given consent that the same shall be so closed, and that in pursuance of such agreement between the Trustees of the University and those of the city of Lexington, the Trustees of Transylvania University have erected the Morrison College on their grounds, on the opposite side of said street from their other buildings, and have connected their grounds by closing said street, so far as it runs through them; that doubts are entertained whether the Trustees of the city had power to allow said street to be closed, without an act giving the consent of the Legislature to the agreement between the Trustees or agents of the University and those of the city of Lexington.

Be it therefore enacted by the General Assembly of the Commonwealth of Kentucky, That the agreement made as aforesaid, shall be good and valid, and that so much of said streets as leads through or divides the grounds of Transylvania University, shall hereafter cease to be a highway in the city of Lexington; and that the Trustees of Transylvania University shall, as to so much thereof, have the same power, rights and privileges, as they have by law over the adjacent grounds belonging to the University."

Afterwards, at the instance of some of the citizens, the municipal council of the city of Lexington having determined to re-open so much of said street as had been thus closed, the Trustees of the University filed a bill in Chancery for enjoining them. But, on the final hearing, on bill and answer, the Circuit Judge dismissed the bill. And that decree is now sought to be reversed.

Decree of Circuit Court.

The University relies on the foregoing enactment, as an authoritative, unqualified, and perpetual obliteration, of so much of the street as had been closed. The city denies the power of the Legislature, to abolish any portion of the street, without the consent of the municipal authorities, or of the citizens immediately interested--insists that no such consent was ever given-- and moreover, contends, that the enactment relied on, was intended and should be construed, as only ratifying the agreement, as made, for closing the street,...