Scarborough, Harland J.

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University of Kentucky

Kentucky Law JournalVolume 12 | Issue 2 Article 31924Prescriptive Rights Against Municipalities inKentuckyHarland J. ScarboroughFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journalby an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationScarborough, Harland J. (1924) "Prescriptive Rights Against Municipalities in Kentucky," Kentucky Law Journal: Vol. 12 : Iss. 2 , Article3.Available at: https://uknowledge.uky.edu/klj/vol12/iss2/3PRESCRIPTIVE RIGHTS AGAINST MUNICIPALITIES INKENTUCKYBy HARLAND J. SCARBOwROUGHBefore discussing the Kentucky decisions on this question itmay be well to state that judicial judgments in this country arenot in harmony upon the question as to whether the rights ofmunicipalities or of the public may be lost by non-user and ad-verse possession. Also we should note that while some of thecourts do not hold that the statutes of limitation are a bar to anaction by a municipality, yet these same courts hold that non-user may continue so long, and consequently private rights maygrow up of such a nature, as to create or to amount to an equit-able estoppel or an estoppel in pais,1 which these courts willenforce as a matter of right or justice; while other courts haveemphatically denied the applicability of such doctrine to publicrights. By the great weight of authority, niullatm tempus accur-rit regi applies to the sovereign power, and the United States aswell as the several states are not, without express provisions,bound by the statutes of limitations.There is a pretty general agreement in the decisions thatthe statutes of limitations will run against the municipalitiesas to property held by them in their proprietary or private rightsas distinct from their public or governmental capacity;2 but thegeneral doctrine is that no title by adverse possession can beacquired against a city as to property which it holds for a publicuse, such, for example, as its streets. The ruling being that thecity is the mere trustee for the public; that cities cannot author-ize the erection of obstructions in the public streets; that un-authorized obstructions or structures thereon are publicnuisances and that no length of time can, unless there be a limitby statute, legalize a public nuisance; that if this were not sopublic rights would be gradually frittered away, there being noone sufficiently interested to exercise the vigilance necessary toIC$y of Uniontown v. Berry, 24 Ky. L. R. 1672.2 fMetropolitan Railway Co. v. District of Columbia, 132 U. S. 1;Bamnoc. County v. Bell, 8 Idaho 1, 6(5 Pacific 710; Platt Co. v. GoodZell,87 Ill. 84; Lancaster Co. v. Brinthall, 29 Pa. 38; Evans v. Erie County,66 Pa. St. 222; Kearney v. Westchester Borough, 199 Pa. St. 392.KENTUCKY LAW JOuRNALprotect the public interest; since in many instances there wouldbe a lack of public official watchfulness, and individuals would betoo slightly interested to make objections, preferring rather totolerate encroachment upon public property than to dispute theright of their neighbors.In an Ohio decision3 Judge Minshall, C. J., said: "Thegeneral rule is that the statute of limitation does not apply asa bar to the rights of the public unless expressly named in thestatutes, for the reason that the same active vigilance cannot beexpected of it as is known to characterize that of a privateperson always jealous of his rights and prompt to repel anyinvasion of them." The earlier cases4 in Ohio which seem to haveheld a contrary doctrine may be put upon the ground of estop-pel. Illinois allows estoppel in pais although it refuses to ac-cept the doctrine that the statutes of limitations run against thecity. The early decisions of West Virginia allowed the statutesof limitations to run against the city, but a later decision5 ex-pressly overruled the doctrine and even went further and deniedthat equitable estoppel could be urged against the city. Butwhile the foregoing is the general rule as applied in most states,the contrary rule is held in Arkansas, Kentucky, Michigan, andin a form modified by statutes in Massachusetts, Connecticut andNew York. Up until 1873 the decisions in Kentucky show thatthe statutes of limitations may run against the municipalitypractically the same as against individuals. In the case ofRowan's Executors v. Town. of Portland' the question arose inthe situation where the owner of land had recorded a plat of it,dedicating the same to the town of Portland on the Ohio river,later adversely occupied by it by constructing a wharf and charg-ing toll for wharf privileges. The court held that he might thusgain title against the city by adverse possession. This decisionannounced the rule that had been followed in Kentucky untilthe legislature in 1873 passed the act7 providing that beforepossession of a street or alley shall be deemed adverse, the party3 Heddleston v. Hendricks, 52 0. S. 460, 465.4 Cincinnati v. First Presbyterian Church, 8 Oh. 299; Cincinnati v.Evans, 5 0. S. 594.sRalston v. Weston, 46 W. Va. 544.'8 B. Mon. 232.T Ky. Statutes, 2546.PRESCRIPTIVE RIGHTS AGAINST MUNICIPALITIESmust give written notice to the municipal authorities thathis holding is adverse. Other cases supporting the doctrinemay be found in the note below.8  The case of City ofHenderson v. Yeaman, et al.,9 was an action to quiet titleto a strip of land appropriated by the plaintiff's grantorto and claimed by the city of Henderson to have been dedicatedas a street, if not a street at the time of the appropriation theright to claim it by adverse possession, and it was held that itwas controlled by Kentucky Statutes, section 2505, providingthat an action for the recovery of real property must be broughtwithin fifteen years after the right to institute it first accrued tothe plaintiff or to the person for whom he claims. The caseholds that where a street was set apart and dedicated as a pub-lic way when the town was laid out, the fact that the city did nottake actual physical possession of, or control or improve thestreet or that it was not used by the public, will not work anabandonment of the street or affect the city's right to reclaim itagainst an adverse holder without some affirmative act by thecity manifesting a purpose to abandon. In Bosworth v. City ofMt. Sterling, supra, it was held that the act of 1873, supra, re-quired written notice from the person in possession of any streetor alley to the town council that his possession is adverse inorder to start the running of the statutes of limitations, appliesto those in possession of any street at the time of its passage ifthe possession had not then ripened into title. A city cannotrecover a strip of land enclosed and occupied by defendants fortwenty years, during which time the city has paved in front ofthe strip and made no claim to it, thereby recognizing defendant'stitle. It was held in Hegan, et al. v. Pendennis Club, et al.,'0 thatwhere an alley dedicated for the common use to lots abuttingthereon had been adversely used by the owner of one of the lotsfor more than forty years, the right of the city and the otherowner was barred by the statutes of limitations and that Ken-tucky Statutes, section 210, providing that all sales or convey-8 Dudley v. Trustees of Frankfort, etc., 12 B. Mon. 610; Alves Exec-utors and Heirs v. Town of Henderson, 16 B. Mon. 131; Bosworth v.City of Mt. Sterling, 12 Ky. L. R. 157, 13 S. W. 920; Terrill v. Blooml-field, 14 Ky. L. R. 614, 21 S. W. 1041.p169 Ky. 503, 184 S. W. 878.1023 Ky. L. R. 861, 84 S. W. 464.KENTUCKY LAW JoURNALances of any lands of which any other person has adverse posses-sion shall be null and void, does not apply to conveyances ofprivate passways and easements though section 458 providesthat the word "land" shall be construed to mean "land, tene-ments, hereditaments and all rights thereto and interest thereinother than a chattel interest." Moody-Mitchcll Imonher andBuilding Company v. City of Louisville,1 held that since plain-tiff had not complied with statutes, section 2546, and prede-cessor in title had not held adversely that palintiff's possessionwas not adverse. In Cornwall, et al. v. City of Louisville,12 adesignated portion of land was ceded to a city for the use of arailroa company on a condition that no more land was to betaken for that purpose. Afterward the company instituted aproceeding under the statute to have additional land condemned,and it was held that while the right of eminent domain cannotbe impaired by any private contract, the court should prescribesuch terms as w6uld insure to the property owner a just compen-saton for the land ceded under the contract. When a person hasbeen permitted to remain in continuous adverse and active pos-session of a public street for more than thirty years the titlevests absolutely in him.In Home Laundry Company, et at. v. City of Louisville, etal.,' 3 involving the situation in which in 1851 the general councilof a city adopted a resolution authorizing -a mayor to give eightfeet of the city land in the rear of the court house lot for publicuse provided the owners of property on the north side of suchstrip would dedicate eight feet for public use and provided thestreet was only to be used by pedestrians and not for wagons,carts and drays. The city as a private owner of property andthe other abutting property owners thereupon executed a deeddedicating such strip as a street denominated "Court Place"with no provision that it was to be used by pedestrians only.There was no formal acceptance by ordinance of the generalcouncil, but the city as a governmental entity took charge andcontrol of such place and improved it at the cost of the abuttingowners, including the city, paved it as a sidewalk or passage and- 169 Ky. 237, 183 S. W. 481.87 Ky. 72, 7 S. W. 553.- 168 Ky. 499, 182 S. W. 645.PRnSCIPTivE RIGHTS AGAINST MUNICIPALITIESthereafter for many years its use was limited to pedestrians andneither the public nor abutting property owners used it as a car-riage way. The court said that "It is, however, the law of thisjurisdiction that a municipality or the public may acquire theright to the use of a street by adverse use, and having acquiredthe right to use the street may lose it by the adverse use of an-other. The municipality in its governmental capacity holds thestreet in the nature of a trustee for the public and the publicmay acquire easement in a street through the action of the muni-cipal authorities for the benefit of the public, or by adverse useby the public for the statutory period. Upon the other hand, anindividual may by adverse possession for the statutory periodof lands dedicated to the public use, acquire title to them ...The principle allowing the acquisition in streets by adverse userof the public and the law of such easements by the public byadverse possession of another over the street dedicatcd to thepublic use remains unchanged except for the statutes of 1873,which provide that the statutes of limitations would not begin toran in favor of an individual against a town or city for the useor possesson of a street until the party whose rights or intereststo rely upon such adverse possession of it has given the author-ities of the municipality notice of his intentions.'4 The peculiarrights of an abutting property owner for the use of a street foringress and egress to and from the property with teams and ve-hicles is a private right of his own and one not shared by thepublic with him, and the municipality does not hold such rightas a trustee for him, hence, it is a right which he may lose by ad-verse use under circumstances which justify the enforcement ofthat doctrine, hence, when the municipality in 1853 accepted thededication of 'Court Place' for public use as a street for pedes-trians only, and was so taken control of by the municipal au-thorities and so constructed as to constitute notice to thepublic and to every one, that its use was limited to pedestrainsas the street in the nature of a sidewalk and not the useof vehicles, the abutting property owners then had the rightto enforce the conditions of the dedication and to require itsconstruction in such a way that it could be used as an authorized1 Ky. S., 1915, 2546.KENTUciY LAw JouRaALstreet over which they could use vehicles. . . The actionof the municipality in constructing and holding the street as asidewalk for pedestrians only and the use made of it by thepublic of such was open, visible, notorious, continuous -and neces-sarily adverse and hostile to the claim of an easement by theabutting property owners to drive teams and vehicles over it.When a municipality through it officers and agents takes andholds lands for a street adversely to the rights of an owner infee for the statutory period accompanied by the use of it by thepublic in the manner necessary to create an easement by prescrip-tion in the street, the title to its use as a street becomes fullyvested in the public. The physical characteristics of such streetand the manner of such construction of its use having been a no-tice to eachl succeeding abutting pioperty owner to the use towhich it was limited, one designing to acquire property on itcould not have been misled as to the use which he could makeof it and was estopped to complain that he was not permitted touse it for vehicles."In City of Franklin v. St. Mary's Roman Catholic Churchl15the city had dedicated certain land to the use of a cemetery andhad marked certain portions of same for the use of the Catholicchurch, and while the testimony was conflicting as to its beingset apart for the Catholic church, the court held the evidence toestablish title in the Catholic church gained by adverse posses-sion of that certain portion of land claimed by it and that thefailure to orally assert adverse title would not prevent acquisi-tion of same, because acts and conduct and not conversaton willestablish adverse possession, although oral assertion of such titlewould be admissible; and it was therefore held that the churchwould be entitled to all such property as it gained title to by ad-verse possession even though, by reason of the small number ofCatholics in the community, only a part thereof was or could beneeded for burial purposes. Public property and lands belong-ing to a municipality may be acquired by adverse possession saveas precluded by statute, and notwithstanding Kentucky Statutes,section 2546, limitations run against the right of a city to recovertitle to a portion of a cemetery held adversely, the term easement188 Ky. 161, 221 S. W. 503.PRESCRIPTIVE RIGHTS AGAINST MUNICIPAITIESmeaning the right in the land of another which cannot existin favor of a person in lands which he himself owns, and does notinclude lands owned by a city for a cemetery.Where notice of an adverse claim in and to a dedicatedstreet has not been given since the incorporation of the townhaving the right to accept under deed of dedication, the statuteof limitations did not run against the town.1'Municipal corporations may be looked upon as having adual capacty, one public and one private, that is, a municipalcorporation may act in its governmental capacity and it may actin its proprietary or private capacity. The true view would,therefore, seem to be that when a municipality acts in its govern-mental capacity, the statutes of limitations could not run againstit. While on the other hand, if the municipality is acting withrespect to property that it does not hold for a public use, butrather in its proprietary capacity, there is no reason why thestatutes of limitations should not run against it in reference tothis property the same as they run against a private individual.For example, there may be pleaded against a municipality thestatutes of limitations in the case of. actions on contract or tort,but such a corporation could not alien public streets or places,and mere laches on its part or on the part of that of its officerscould not defeat the rights of the public by setting the statutesto running.There are numerous cases where it has been held thatmunicipalities or minor police subdivisions of the state are notsubject to limitation laws in respect to streets and public high-ways; but streets and highways are not for the use of the inhab-itants or any municipality or locality alone, but for the free andunobstructed use of the people of the state. Such rights areclearly distinguishable from the rights or interests of the inhab-itants of a locality in property acquired for a merely local use,such as city offices, a library site, or the use of a fire department,where such property is held and used for strictly local purposes.Generally there would be no difficulty in applying the stat-utes of limitations, but the difficulty comes in those border line". Arn v. Chesapeake & Ohio Railway of Zentucky, et aL, 171 Ky.1 7.KENTUCKy LAw JOURNALcases, as we may term them, that is, in those cases where it is hardto determine whether the municipality is acting in its govern-mental capacity or in its proprietary or private capacity. Oncewe have determined that it is acting within its governmentalcapacity, the problem is really solved. This difficulty is illus-trated by the case of Brown v. Trustees of School.17Such circumstances in the situation as that private rightswould be acquired and the city by its failure to act allowingthese private rights to arise should be in justice and equityestopped to deny such private rights and although the statutes oflimitations do not run in favor of the private individual againstthe city, yet the city would be prohibited from asserting therights it once had. There is no danger in extending the prin-ciple thus far because the city's rights will not be cut off exceptin those exceptional cases where justice would demand it andthe city has been lax in the allowing of such rights to be acquiredby the private individual, and to do this would, in all cases, re-quire the courts to decide whether in justice the city's rightshave been terminated and not leaving it to mere lapse of time;by such the end of justice would be obtained.1 224 I1i. 184.

Prescriptive Rights Against Municipalities in Kentucky

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Prescriptive Rights Against Municipalities in Kentucky

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