(Filed June 12, 1896 - Not to be reported.)
The Kentucky Law Reporter, Volume XVIII, July 1896 to June 1897, Frankfort Ky, Geo. A. Lewis, Publisher, 1897, pages 302-303
1. Conveyance of part of courthouse square by town trustees-The trustees of a town have no control of the courthouse square, and can not make a valid conveyance of any part of it or place any one in the rightful possession thereof; and the authorities of the county are the proper parties to sue for possession of the property or for a trespass thereon.
2. Same Pleading-In this action in which the plaintiff alleges in his petition that the trustees of the town have attempted to sell and convey to defendants a part of the main street of the town and also a part of the courthouse square, and that defendants are erecting a building upon the ground thus conveyed, which the plaintiff alleges will obstruct his ingress and egress to and from a lot which he owns fronting upon that street and contiguous to the public square, as the boundary set out in the petition shows the lot which the trustees of the town have attempted to convey to defendant does not embrace any part of the street, the allegation that it embraces a part of the street is but an erroneous conclusion of the pleader; and as it is alleged that the building being erected by defendant is upon the ground conveyed to him by the trustees it can not be an obstruction of the street.
3. Pleading Pleadings must be construed most strongly against the pleader.
J. W. Croan for appellant.
Fairleigh & Strauss for appellees.
Appeal from Bullitt Circuit Court.
Opinion of the court by Judge Paynter.
The appellant filed a petition and secured amendments thereto, in which it is alleged that the trustees of the town of Shepherdsville on the 24 day of July, 1894, executed and delivered to Troutman Bros. a deed conveying to them a "certain portion of the public streets and public square in the said town of Shepherdsville, the same described in the said deed as follows, to-wit: Beginning on the north corner of the lot conveyed to Troutman Bros. by. J. I. Rickerson and wife, lying on Main street and running north with Main street 12 feet; thence east about 40 feet to line of lot owned by H. F. Troutman, lying on Second street; thence south 12 feet with the line of H. F. Troutman's lot to the line of the lot purchased by Troutman Bros. of J. I Rickerson; thence with the line of said lot about 40 feet to the place of beginning."
A copy of the deed is filed as part of the petition. It is further alleged that a part of Main street, in the town of Shepherdsville, and a part of the court-house square is attempted to be conveyed by the deed.
It is also alleged that plaintiff is a citizen and taxpayer of the town; that he owns and occupies a lot contiguous to the public square and abutting on Main street on the opposite side from the ground embraced in the deed; that Troutman Bros. are erecting a brick building on the ground purported to be sold them by the trustees; that plaintiff and other citizens will suffer great and irreparable damage by the obstruction of the aforesaid (Main) street; that plaintiff is a physician; that he has been using Main street daily with horse and vehicles as a way of ingress and egress to his place of business, and that the obstruction will "depress and narrow" his ingress and egress to his place of business and result in his irreparable injury and for which he has no adequate remedy at law.
The foregoing is all that is essential to be stated as to the allegations of the petition. A demurrer was sustained to it as amended, and a judgment was entered dismissing it. From that judgment this appeal is prosecuted.
On this inquiry it is needless to consider and decide what right the trustees of the town of Shepherdsville had to sell and convey a part of a public street of the town, or as to whether a citizen and taxpayer of the town has the right to have them enjoined from making such sale, or their vendee enjoined from erecting a building thereon, because it is alleged that Troutman Bros, are erecting a building on the ground which the deed purports to convey. The description of the ground given in the petition and deed shows that the trustee did not attempt to nor did they convey any part of Main street. The deed calls to run "north with Main street," and does not purport to embrace any part of it. The description of the ground given in the petition (being the same as in the deed), and the deed shows conclusively that no part of Main street had been conveyed to Troutman Bros.; and, as they are having the house erected on the ground embraced in the deed, it follows that it could not be on any part of Main street.
Pleadings must be construed most strongly against the pleader, but in this case the conclusion which we have reached is only a fair deduction from plaintiff's pleadings. Where the pleadings alleged the facts with reference to the conveyance, and gave the language of the deed, description of the ground conveyed, and which shows it conveys the ground only to Main street and not a part of Main street, then a statement that it conveys part of Main street is a conclusion of the pleader, and appears to be a very erroneous one. Under the law the trustees of the town in which a courthouse square is situated have no control of it, nor could they make a valid conveyance of any part of it, or place anyone in the rightful possession thereof. If Troutman Bros. entered upon the courthouse square the authorities of Bullitt county are the proper parties to recover the possession of the property or damages for a trespass thereon. There are no allegations that the plaintiff or the public have been or will be deprived of the uses for which it was intended, or that the county authorities have or will decline to take such steps as are necessary to preserve the courthouse square for the use of the public. The judgment is affirmed.
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