Opinion
Decided November 17, 1925.
Appeal from Franklin Circuit Court.
T.B. McGREGOR for appellee Capital Trust Company.
JOHN S. CARROLL for appellee Carroll.
Affirming.
The Capital Trust Company, as trustee for the heirs of T.L. Edelen, deceased, contracted in writing to sell Hon. John D. Carroll a residence and lot fronting Ewing street and running back to a line near a ravine at the end of Third street in the city of Frankfort.
A question arose as to the right of the city in the property and to test that question the trust company brought this suit for specific performance, making the city a party. Ewing street extends north and south at the western limits of the city; Conway is the next parallel street. Between the two is a deep ravine running in the same direction as those streets, along the eastern boundary of the property in question. Third street runs east and west and intersects Conway and as opened and used extends to the ravine mentioned. The residence is near the center of the lot and in the line of the street if extended.
It is conceded that as laid out in the original map of the city of Frankfort in 1796, Third street extended through this property to Ewing street, and as to this part of the street plaintiff claims title by adverse possession. In the pleadings the city raises an issue on this question, but the uncontradicted proof is that the city has never opened or used Third street beyond the ravine mentioned and that prior to the year 1853 one Jack Hanna erected a residence upon the lot in controversy, on the site of the present residence, and also enclosed the entire lot with a fence which ran along the western edge of the ravine. In the year 1853 he conveyed this to Mrs. Maria Church. Mrs. Church occupied it from 1853 to 1857, when she sold it to Mrs. Jane Page, who occupied it until 1892, when it was sold to T.L. Edelen, who rebuilt on the same site and occupied it as a residence until his death in the present year. During all that time the entire lot was enclosed by fences and its occupants were claiming it openly, notoriously and adversely, and it thus clearly appears that their possession had continued for more than 15 years prior to the year 1873. Therefore the provisions of section 2546 of the Ky. Statutes requiring written notice of the adverse holding to be given to the city in order to start the statute of limitation did not apply and the possession had ripened into title before the enactment of that statute. Dudley v. Trustees of Frankfort, 12 B. M. 610; Alves v. Henderson, 16 B. M. 131; Bosworth v. City of Mt. Sterling, 12 L. R. 159; City of Hartford v. Nall, 144 Ky. 259. Also the possession has been continuous since that time, and no right acquired by Mrs. Church has been lost by any of the subsequent owners. It follows that the city of Frankfort has not manifested any right, title or interest in or to any portion of the lot, and as against it plaintiff's title is good and sufficient. Such was the ruling of the lower court and it did not err in adjudging that John D. Carroll shall accept the deed tendered to him by plaintiff.
Other questions are raised which are not necessary to a determination of the issue between the parties to this suit and as to them the court expresses no opinion.
Wherefore, perceiving no error, the judgment is affirmed.