
    CASH 57. — ACTION BY . THE LOUISVILLE & NASHVILLE RAILROAD COMPANY AGAINST W. B. TAYLOR.—
    May 24, 1910.
    L. & N. R. R. Co. v. Taylor.
    Appeal from Oldham Circuit Court.
    Charles Marshall, Judge.
    ■From a judgment dismissing the petition, plaintiff appeals.
    Reversed.
    1. Injunction. — Trespass—Remedy by Ejectment. — Where defendant’s maintenance .of a fence on the right of way of plaintiff, railroad company did not materially interfere with the operation of the road, plaintiff was not entitled to relief by injunction! ejectment being its remedy if entitled to any relief.
    2. Quieting Title — Right of Action — Possession—Necessity.— Allegations of the petition that plaintiff was the owner and in possession of a described part of its right of way, except that defendant has obstructed a part thereof with fence which he claims and maintains and refuses w remove, show that defendant was in actual possession and had inclosed the land claimed, so that plaintiff could not maintain an action under Ky. St. section 11, authorizing one having both legal title and possession of land to institute an equitable suit against one having a claim against such land; that section requiring plaintiff to be the owner and in possession when the action is brought.
    3. Ejectment — Actions—-Petition — Allegations — -Deraignment of Title. — Under the code allegations of a petition in ejectment that plaintiff owns -the -land described and is entitled to immediate possession are sufficient, without showing how •he derives his 'title.
    4. Ejectment — Actions—Sufficiency of Petition — Description of Land. — Allegations of the petition in an action to recover land that the strip claimed is 800 feet in length and 33 feet wide, measured from a point in the center of plaintiff’s main track beginning at a line between defendant and ahother and ending at the line of a certain owner and running parallel with plaintiff’s main track, sufficiently described the tract claimed so as to identify it as required by Civ. Code Prac. section 125.
    CHAS. CARROLL, D. H. FRENCH, BENJAMIN D. WARFIELD and CHAS. H. MOORMAN for appellant.
    EDWARDS, OGDEN & PEAK for appellee.
   Opinion op the Court by

Judge Nunn

Revers-' ing.

Appellant filed a petition in the Oldham circuit court, in which it alleged its own corporate existence and right to purchase other railroad corporations. It then alleged the incorporation of the Louisville & Frankfort Railroad Company and the powers given it hy its charter. It also made like allegations with reference to the Lexington & Frankfort Railroad Company and the merger of these two roads as authorized by an act of the Legislature, under the name of the Louisville, Cincinnati & Lexington Railroad Company, and then alleged that it was the owner of the last-named corporation by purchase. It averred that in the acts incorporating the before-named roads the Legislature authorized them to purchase or condemn, for the purpose of constructing a road, a right of way through the counties it passed, 66 feet wide; that by reason of its purchase of the aforesaid roads it became the owner of this right of way and all other rights and privileges given them under their charters, and continued as follows: “That, by reason of the purchase by it of the said Louisville & Lexington Railway, it became the owner and possessor of a certain right of way which is now in the town of La Grange, Oldham county, Ky., 66 feet in width, which is 33 feet from the center line of its main track on each side thereof, upon which it now and ever since said purchase has continually and daily operated its trains, and that it is the owner and in the possession of the following described portion of said 66 feet of right of way in said town and county ever since said purchase, using same for railroad purposes, viz.: A strip of land 33 feet in width on south of the center Jine of the main track of said railroad. Beginning in the property line of the land of the defendant, "VY. B. Taylor, and L. Gr. Lambert; thence running east and with the center line of said main track 800 feet to the east line of the property line between the land of said defendant and Mosly, except that the defendant, W. B. Taylor, has obstructed a portion of said right of way with a fence' which he claims and maintains of posts, wire, planks, and slats put, placed, and erected therein, and which he fails and refuses to remove, to the great and irreparable injury of the plaintiff; that the plaintiff and those under which it holds have been the owners, holders, claiming the right to, and operating said railroad and right of way, openly, adversely, and continually for more than 50 years, when on or about the 25th day of March, 1907, the defendant purchased a tract of land adjoining said right of way and unlawfully and without right set up claim to a portion of said right of way, and has ever since maintained said fence and obstruction of said right of way.” The court overruled a demurrer to this petition but sustained a motion to make it more definite, and, appellant failing to comply with this order, the court dismissed the petition.

Appellant instituted this action in equity seeking a mandatory injunction against appellee compelling him to remove a fence and surrender to appellant the ground inclosed by it. Clearly, the allegations of the petition did not authorize a court of equity to intervene. There is no statement showing that the alleged obstruction placed on appellant’s right of way by appellee materially prevented it from operating .its road for the benefit of itself and the public. Appellant’s counsel insist that it has the right to maintain the action under section 11, Ky. St. In this they are in error. To proceed under that section, the plaintiff must be both the owner and in possession of the land in contest at the time of the institution of the action. The petition in this case shows that appellee was in the actual possession of and had the land inclosed at the time of the institution of the action. See the cases of Horn v. Bates, 114 S. W. 736, and Cockrell v. Colson, 116 S. W. 775. It is true that appellant alleged in its petition that it was the owner and in the possession of the land, but other allegations contradict this. In our opinion, appellant is not entitled to maintain this action under section 11, Ky. St.; nor is it, under the averments of the petition, entitled to the aid of a chancellor. If it is entitled to any relief, it must resort to an action in ejectment at law; therefore this action should have been transferred to the ordinary docket for trial. Appellant undertook in its petition to show how it de:rived its title to this right of way, and alleged that, under the various charters referred to, its vendors, immediate and remote, were authorized to take a strip of land 66 feet in width through the counties they ran, and assumed that this strip was 66 feet wide where it passed the property owned by appellee. There is no allegation that either of the roads referred to had purchased or received by gift or condemnation proceedings a right of way at that poiat 66 feet in width. This, however, in an action in ejectment, was unnecessary. Under our Code a statement by tbe plaintiff that lie is tbe owner of tbe land described and entitled to the immediate possession thereof is sufficient. He need not allege and show how he derived his title ; but, if he has it, he can introduce it as evidence to support his allegation of ownership.

Appellee’s-counsel-contend that the court-did not err in dismissing the petition for the reason that the land in contest was not described as required by section 125, Civ. Code Prac. "We are of the opinion that the description is sufficient. The strip claimed is 800 feet in length and 33 feet wide measured from a point in the center of the main track, and runs parallel with the track. The petition fixes the beginning of the 800-foot line at a line between appellee and L. GL Lambert and ending in Mosly’s line.

For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.  