
    Case 78 — Action toe a Mandatory Injunction —
    April 30.
    South Covington & C. St. Ry. Co. v. Newport L. & A. Turnpike Co.
    APPEAL PROM CAMPBELL CIRCUIT COURT.
    Judgment por Plaintipf and Dependant Appeals.
    Reversed.
    Dedication op Street — Acceptance—Adverse Possession by Turnpike Road Company.
    Held: 1. Where, in a suit for the partition of land among devisees in 1868, the land was divided into lots, streets, and alleys, as directed hy testator’s will, and a copy of the plat thereof was filed in the county clerk’s office, and deeds were executed to the devisees referring to the plat and to B. street, as shown thereon, and lots .were sold ,and conveyed hy the devisees by deeds refering to the plat and calling for the streets dedicated thereby, there was a dedication of B. street, though the land was not then within the city limits, and though the plat was not recorded, as the law did not then require that to be done; and the subsequent extension of the city limits so ,as to include a part of B. street, and the original construction of that street at the expense of abutting property owners, pursuant to a city ordinance, are sufficient evidence of acceptance by the city.
    2. A turnpike road company could not claim title to B. street by prescription by reason of adverse possession commenced after ■the street w.as dedicated, though prior to its acceptance by the city, or, by reason of the mere use thereof by the public as a highway.
    C. B. SIMRALL, Attorney eor appellant.
    L. J. CRAWFORD and JOHN GALVIN op counsel.
    The appellant is a corporation organized under ,a special Act of the Kentucky Legislature for the purpose of constructing and ■operating a system of street railways in the cities of Covington and Newport, Ky., and in the vicinity of said cities, and in 1899 ■the company constructed its shops for the repair of its cars and motors, and central car barns for the keeping of its cars and motors, and to connect the same with its system of tracks so-that cars might pass to and from said barns and shops, and it selected a lot in Newport on the southwest corner of Eleventh and Brighton streets for this purpose.
    After the car barn had been constructed and a greater portion of the tracks had been laid on Brighton street, the appellee filed a petition .claiming that the plaintiff and its predecessors had continuously conducted a turnpike, commencing at the intersection of Ninth and Brighton streets, and extending southwardly through the city of Newport; and that all of what is known as Brighton street in the city lying south of Ninth street had been and was the turnpike of the plaintiff, and asking a mandatory injunction directing that appellant at once remove all its tracks, poles, and wires, from Brighton street between Eleventh and Twelfth streets, and to remove the curves connecting said ■tracks with the said car barns -constructed by appellant, and to enjoin appellant from placing its tracks, wires, and poles, -on and over Brighton street from Eleventh to Twelfth streets.
    There are three questions to be determined by .this appeal:
    1. Does the Newport, Licking & Alexandria Turnpike Company own Brighton street from Eleventh to Twelfth street?
    2. Does said company own an easement by prescription on said Brighton street such as prevents the city of Newport from granting the use of the -street for street car purposes?
    3. Are the .appellees by their laches, in permitting without protest, appellant to erect its car barn and construct its tracks and curves on Brighton street, at an expense of $18,000, estopped from now objecting to the use of said tracks and barn so constructed by the appellant? . .
    POINTS AND AUTHORITIES.
    Easements in public highways, claimed by prescription, must be established by a continuous, peaceable, adverse, exclusive occupancy of the right claimed,, for a period of more than fifteen years. Am. & Eng. Ency. of Law (New Series), vol. 10,p. 426; Dudley v. Frankfort, 12 B. M., 117; Alves v. Henderson, 16 B. M., 172; Manier v. Meyers, 6 B. M., 136.;
    The planting of property into a town subdivision, laying out. .streets, lots and alleys, and selling of lots by deeds referring to the plat, and calling for the streets named in the plat, as boundaries to lots sold, constitutes a dedication of the streets for street purposes. Elliott on Roads and Streets, pp. Til, 112, 113; Dillon on Municipal Corporations,, p. 629; Rowan’s JSxrs. v. Town of Portland et at, 8 B. M., 232; Wickliffe v. Lexington, 11 B. M., 155; Elizabethtown & Padueah R. R. v. Thompson, 79 Ky.,, 52; West Covington v. Frekin, 8 Bush, 121; Davis, Moody & Co. v. Louisville, 4 Ky. Law Rep-., 721; Hood v. Trustees Lebanon, 12 Ky. Law Rep., 813.
    An act of dedication of a street is a question of the intention, of the dedicator. Elliott on Roads and Streets, pp. 92, 93.
    A dedication of a street may be made in praesenti to he accepted in futuro. Elliott on Roads and' Streets, p. 90; Mayor, etc. v. Morris C. B. & Co., 12 N. J. Eq.,. 547; Mayor, etc. v. City of Portland, 16 Ore., 500; Davis, Moody & Co. v. Louisville, 4 Ky. Law Rep., 721.
    Acceptance of dedicated street may he:
    
      First. By amendment of city charter extending corporate limits so as to take in territory previously laid out and platted into lots, streets and alleys, with a view of being, in the future, taken into the city as a part of the city. Elliott on Roads and Streets,, p. 116; Des Moines v. Hall, 24 la.,. 234.
    
      Second. By a municipality repairing, improving, lighting, or otherwise assuming control over the- land dedicated as a street. Am. & Eng. Ency. of Law (New Series), vol. 9, p. 43;. Gedge v. Cov., 9 Bush, 621; Kent. Central K. R. v. City of Paris, 95 Ky., 627; Schaefer v. Selvage, 19 Ky. Law Rep., 797.
    A turnpike road can not be improved by a city at the expense-of the abutting property owners. Elliott on Roads and Streets,, pp. 60, 61; Wilson v. Allegheny City, 79 Pa. Stat., 272.
    Where the owner of property permits- a railroad to enter upon his property and construct its hire* such owner will not be permitted, after the line of railroad has been constructed, either to enjoin its use, or to eject it from the property. The only remedy left to the owner of the property is a right of action for damages. Halbert v. Maysville & Big Sandy R. R., 98 Ky., 661; Louisville & C. R. R. v. Stephens, 96 Ky., 401; Ferguson & Ernst v. C. & O. R. R., 57 S. W., 460; High on Injunctions, sec. 618; Reichert v. St. Louis R. R., 38 Am. & Eng. R. R. Cases, 453.
    An injunction to restrain a trespass should not be granted unless—
    
      First. The plaintiff’s title is established beyond a doubt, and,
    
      Second. Unless the injury complained of is irreparable in its nature. High on Injunctions (3 Ed.), secs. 701-820, 821, 1019; Newport & Licking T. Co. v. Fitzsimmons, 9 Ky. Law Rep., 939.
    It has been the policy of this court to refuse to interfere, by in: junction, with the construction of railroad tracks in streets, parties injured, if special damages are sustained, being left to their actions at law. Railroad v. Applegate, 8 Dana, 289; Fulton v. Short Route R. R., 85 Ky., 653; Hyland v. Short Route R. R., 10 Ky. Law Rep., 900.
    This rule is especially applicable to a street railway. Louisville Bagging Co. v. Central Passenger R. R. Co., 95 Ky., 54.
    SAMUEL C. BAILEY, Attorney jtor appellee.
    'COURT T. BAKER op counsel.
    As it is either admitted by the pleadings or proven beyond .doubt that in the year 1851 the appellee was incorporated and -empowered to construct a toll turnpike, beginning at the then Southern corporation line of the city of Newport and extending southwardly, and until the year 1870 the south line of Newport was Harris (now Muth) street, and in March, 1870, the city line extended to what is now Tenth street, and in March, 1872, said limits were extended so as to include what is now Twelfth street, and i-n the year 1868 or 1869, the plaintiff constructed its road to the intersection of Ninth and Brighton streets, running from Twelfth, with the line of what is now commonly called Brighton street, and from said date, last mentioned, appellee had kept all its road in repair and continuously charged tolls from and to the intersection -of Ninth and Brighton streets, and the appellee’s turnpike -has been and now is obstructed by appellant. I need not discuss these questions.
    Appellee claims in this case:
    3. It is its duty to keep its road in repair and free from obstructions.
    2. There has been no dedication to and acceptance by the public of the part .of the highway in dispute.
    
      3. Section 2546, Kentucky Statutes, does not apply to tkis case.
    4. An injury has been done appellee.
    5. The city of Newport has police control only over that part of appellee’s road within its limits.
    6. If appellee’s rights have been invaded, injunction is the proper remedy.
    7. Injunction is the proper remedy to prevent an injury to a franchise.
    8. Injunction lies to prevent irreparable injury.
    9. No delay occurred in bringing this action.
    AUTHORITIES CITED OR DISCUSSED.
    Ky. Statutes, secs. 4720, 4730, 4731, 4732, 2548; Chas, v. City of Oshkosh, 81 Wisconsin, 313; Elliott on Roads, 479, 313, 496, and 497; Rowan’s Exrs. v. Town of Portland, 8 B. M., 236; Dillon on Mun. Corp. (4 Ed.) 640 and 642; Acts 1879, vol. 1, p. 154; Wickliffe v. Lexington, 11 B. M., 155; Elizabethtown, &c., R. R. Co. v. Thompson, 79 Ky., 52; City Covington v. McDonald, 94 Ky., 1; Davis, Moody & Co. v. City Louisville, 4 R., 721; Cornwall v. L. & N. R. R. Co., 87 Ky., 72; State v. Passaic Turnpike Co., 27 N. J. L„ 217; Detroit v. Detroit & E. P. Co., 12 Mich., 333; State v. Hoboken, 30 N. J. L., 225; Quinn v. Mayor, &c., of Paterson, 27 N. J. L., 35; Chope v. Detroit & W. P. R. Co., 37 Mioh., 195; Versailles, &c., Turnpike v. Versailles, 9 R., 352; Chiles, Thompson & Co. v. Ringo, 14 R., 302; Ellis v. Wren, 84 Ky., 254; Mc-Closky v. Doherty, 17 R., 180; Ecton v. Lexington, &c., Ry., 12 R,. 921; High on Injunctions (3 Ed.) 620, 932, and 944; Cone v. Pittsburg, &c., R. R. Co., 24 Pa. Stat, 159; Carpenter v. Capital Electric Co., 69 Am. St. Rep., 289.
   Opinion of the court by

JUDGE BURNAM

Reversing.

This litigation involves the question of the ownership of that portion of Brighton street lying between Eleventh and Twelfth streets, in the city of Newport. Appellee claims it as a part of its turnpike road, while appellant .says that it is one of the public streets of Newport, and that appellee has no right or title thereto. The appellee began the litigation by the institution of this suit in the Campbell Circuit Court on the 4th day of August, 1899, against the appellant, in which it alleges that in the year 1851 it was incorporated and empowered to construct and operate a turnpike road from the southern corporation line of Newport, which was then Ninth street, up the valley -of the Licking river, and that in the year 1S69 it constructed its road from Ninth street up what is known as “Brighton Street ” and had continuously from that date kept this part of its road in repair, and charged toll thereon. And it further alleges that that portion of Brighton street lying between Eleventh and' Twelfth streets, which was a part of its road, had been obstructed by -appellant, without its consent, by the laying of railroad tracks and the erection of poles and wires, for the purpose of operating its street cars and conducting them into its car barn on the corner of Eleventh and Brighton streets, and prayed for a mandatory injunction requiring the defendant to remove all these tracks, poles, an'd wires from its road. The defendant in the court below, and the appellant -here, filed an answer in which it denies— First, that the plaintiff had any title to, interest in,” or easement -over Brighton street from Eleventh to Twelfth street or that it or its predecessors either now or bad ever operated a turnpike road over that part of Brighton ■street from the intersection of Ninth to Twelfth street, ■or that the turnpike included any part of Brighton (street, in the city of Newport, or that it had obstructed the street by the construction of its tracks therein, and the erection of the poles and wires complained of. It further alleges that Brighton is a public street of the city of Newport, and that the city .council has complete control over it, and that, by an ordinance regularly passed by the city-council, it was authorized and permitted to lay its tracks, and erect the poles and wires complained of, for the purpose of making connection with its car barn situated and fronting upon Brighton - street, south of Eleventh, before the institution of this suit. Upon the final submission of the suit, the circuit judge granted a mandatory injunction requiring appellant within twenty days to remove from Brighton street all of its tracks, poles, and overhead wires. The mandatory injunction was suspended by a judge of this court and the cause is now before us for decision upon its merits.

A brief history of the facts connected with the ownership of that portion of Brighton street in contest-is necessary for a proper understanding of the legal question -raised upon the appeal. Previous io his death, in 1849, Gen. James Taylor owned all the land lying between Ninth and Thirteenth streets in the city of Newport, including the land now occupied by Brighton street between Eleventh and Twelfth. At that date the city limits did not extend beyond what is now known- as “Ninth Street.” In the seventh section of his will, he devised this tract of land to his three daughters, Keturah, Anne, and Jane, directing that it should be equally divided between them, and, to this end, should be laid off into town lots-, and sold and conveyed in fee, -or put on perpetual lease, as they may choose; and, t’o effect this object the ¡circuit court was authorized to appoint a, trustee to sell and convey, or lease perpetually, the ground. Subsequent to the death of Taylor, a suit was brought for the partition of the land among his heirs. In this proceeding, an order was entered in 1868 directing a division of the land into streets, alleys, and lots, and a division was made pursuant thereto, and confirmed on the 9th of Mayq 1809. A copy of the plat was filed in the county clerk’s office, and was known as-the “Trustees’ Addition to the City of Newport.” After this subdivision was made, the trustees of the estate of Taylor executed deeds to the heirs, which referred to the plat and to Brighton street as shown thereon and lots in this addition were sold and conveyed by the devisees, referring to this plat, and calling for the streets dedicated thereby. Before this subdivision in 1868, the turnpike road of appellee had only been constructed to the southern boundary of this'tract of land. There seems to have been a sort of mud road from the southwest corner of Twelfth and Lowell streets to the northeast of Eleventh and Brighton; and from this point travelers •scattered over the common at will, entering the city of Newport at different places along its southern boundary. After its subdivision into lots, the turnpike company, for the first time, in 1869, did some grading along what is now* known as “Brighton. Street,” and caused cinders collected from a neighboring factory to be spread over the surface of the street from Ninth to Twelfth street, and since that time the bulk of the travel from the turnpike road has been confined to the use of Brighton street.

Appellee could only have acquired the interest asserted in Brighton street in one of two ways: First, by direct grant from the idevisees of Gen. Taylor previous to its dedication as a public street in 1869 by the proceeding in the case of Thornton against Harris. It does mot claim to have acquired the alleged right in this way, tout rests its whole contention upon the claim of a possessory or prescriptive title. Tio entitle appellee to an easement by prescription, it musí: show that it was in the open, adverse, peaceable continuous, and exclusive! use of the part of Brighton street in controversy ,in this action for a period of at least fifteen years before the institution of this suit, and that this use began before its dedication in 1869. It is true that it is claimed by appellee that there was no dedication of Brighton street by the subdivision under the judgment of the Campbell Circuit Court, for the reason that the m,ap of that subdivision was not recorded, and for the further reason that the addition was not formally accepted as a part of the city of Newport by the city authorities, and for the additional reason that at the time of the subdivision it was not included •in the corporate limits of the city. The law' is well settled that appellee could not have acquired an easement by prescription in a dedicated street by the mere use thereof by the public as a highway, and it wholly failed to prove the assertion of any acts of ownership prior to 1869, and it could not do so subsequent to that time. The testimony of the witnesses Graf, Fitzsimmons, Schneider, and Easier showed that, prior to the subdivision in 1869.. the turnpike company had only constructed its road to a point north of what is now known as “'Twelfth Street,” and that from the northern terminus travelers over their road scattered over the common until Brighton street was laid out in 1S69 and that then, for the first time, they attempted to establish their road down Brighton street by doing some good work in the way of grading and covering it with cinders. It is wholly immaterial that the map of the subdivision was not recorded. The law at that time did not require it; nor was it necessary that there should have been a formal acceptance of the street by the city of Newport. Indeed, they could not have done so at that time, as it was not included within its corporate limits. In the case of Davis v. City of Louisville, 4 Ky. Law Rep., 721, this court said, viz.: “When the owner of land, adjoin ing the city of Louisville recorded a map thereof, laying it off into lots and streets, with the intention of dedicating the streets to the city of Louisville, and sold lots calling for the streets as boundaries, there was a dedication, although at the time the map was recorded the territory embraced therein was mot a part of the, city.” It also appears that the corporate limits of Newport were extended so as to include this portion of Brighton street in 1872; and Elliott, Roads & S. p_. 116, says: “Where an amended charter is accepted which adds municipal territory previously laid out and platted, there is an implied acceptance of the streets and alleys designated on the plat.” Besides, on the 39th of June, 1890, the city council, by ordinance, ordered the original construction of all of Brighton street between Tenth and Twelfth, by .grading, curbing-paving, laving crossings, etc.; and this original construction was made at the expense of the abutting property owners, without protest from appellee. “The law is well settled that a turnpike can not be improved at the expense of adjoining land owners, but the landowners may, by- suffering the work to proceed without objection estop themselves from denying that the way is a street of the city.” See Elliott, Roads & S. p. 60, and authorities there cited. The extension of the city limits in 1872, and the original construction of Brighton street in 1890, are sufficient evidence of the acceptance of the -dedication of this street by the city. We do -not deem it necessarj' to incumber this opinion further by citation from authorities, but ample, authority to support the conclusions here reached is found in the cases of Rowan’s Ex’rs v. Town of Portland, 8 B. Mon., 232; Wickliffe v. City of Lexington, 11 B. Mon. 155; Railroad Co. v. Thompson, 79 Ky., 58; West Covington v. Frekimg, 8 Bush, 121; City of Covington v. McDonald, 94 Ky., 1, (21 S. W., 235); Dillon, M. Corp., 629; and Elliott, Roads & S. pp. 111-113. We are of the opinion that appellee has failed to establish its claim to the portion of Brighton street in contest, either by grant or prescription, and that the title thereto was exclusively in the city council of Newport; and there is not ground on which to rest the judgment of the circuit court, and it is now reversed and cause remanded, with instructions to dismiss plaintiff’s petition.

Petition for rehearing by appellee overruled.  