180 Ky. 497 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
The appellants, Louis A. Rentier, Richard H. Ranson and Alonzo Shearer, suing for themselves and all other citizens of the city of Erlanger, filed their petition, in equity, against the appellant, Cincinnati, Covington & Erlanger Railway Company and the South Covington & Cincinnati Street Railway Company. It is averred in the petition, and amendment thereto, that the plaintiffs, therein, appellants here, were citizens, residents and property owners in the city of Erlanger and had been such for many years, and that the population of Erlanger and its immediate vicinity amounted to three thousand persons, all of whom had an interest in the cause of action and in the relief sought, similar to that of the plaintiffs; that in the year, 1899, the Cincinnati, Covington & Erlanger Railway Company was incorporated, as a railroad corporation, under and as required by the provisions of chapter 32, article YI, of Kentucky Statutes, for the purpose of constructing, maintaining and operating a line of railroad, and that the articles of incorporation described the line of railroad, which the company was proposing to construct and operate, as a line from Covington, in Kenton county, Kentucky, to the town of Erlanger, in the same county, and to such further points beyond Erlanger, as might thereafter be determined upon, and over and along and upon such streets, bridges, roads, highways and such property of private ownership, as the company might, by due process of law, acquire the right to lay its track and other appliances upon, and that the railway was to be operated by electricity or other improved method of rapid transit. It was, further, averred, that by reason of the authority, which the corporation obtained from its articles of incorporation and the laws of the Commonwealth re-
A general demurrer was interposed by the defendant corporations to the petition, as amended. The demurrer was sustained by the court, and the plaintiffs having declined to, further, plead, the petition was, by a judgment of the court, dismissed and the relief sought denied, and from this judgment the plaintiffs have appealed.
It will be observed, tbat there is no such question presented, as arises, when a railroad corporation proposes a change in tbe location of its road, after tbe road bas
As to whether or not the articles of incorporation of a railroad corporation, organized under the general law
“A statute or charter, which does not expressly require, but merely authorizes the construction of a railroad, does not impose any positive obligation upon the company to do so, or to complete the entire line authorized after building a part of it, and consequently the railroad company can not be compelled to do so.....”
The appellee, Cincinnati, Covington & Erlanger Railway Company, obtained its articles of incorporation by a certain number of citizens filing a copy with the Secretary
“Third. The business of said company shall be the construction, maintenance and operation of a line of railroad, not exceeding ten miles long. . . . Said railway is to be constructed and operated from the city of Covington, Kenton county, Ky., to the town of Erlanger, in Kenton county, Ky., and to such further point beyond said town of Erlanger as may hereafter be determined upon, and over, along and upon such bridges, streets, roads, highways and such private' property, as said company may, by due process of law, acquire the right to lay its tracks and other appliances and appendages upon.”
A perusal of all the statutes relating to the organization and conduct of railroad corporations, and to the construction, maintenance and operation of railroads, demonstrates that, in none of them is there any requirement, that a corporation, which has been created for the purpose of the construction and operation of a railroad, shall construct the proposed road, or, in the event of a construction of a portion of it, shall be required to complete its construction to its terminus, or to any designated point upon its proposed route. The articles of incorporation do not contain any covenant, in terms upon the part of the corporation, that it would construct the intended road, nor can such covenant be reasonably implied from anything stated in the articles. The practical construction^
The contention that the appellee, corporation, is under a legal obligation to construct its road to Erlanger, because of the representations in the articles, that it was intended to be constructed to Erlanger, and to a distance not exceeding ten miles, and thereby escaped the necessity of purchasing a franchise to exist not exceeding twenty years, does not seem to be well taken. It is not a street railway, within the meaning of sections 163 and 164, of the Constitution, since its operation is not confined to the streets of any town or city, and the articles determine the class to which it belongs which is that of an interurban road. Diebold v. Ky. Traction Co., 117 Ky. 146; Elizabethtown, &c., R. R. Co. v. Ashland, etc., 96 Ky. 355. Neither can it be required to extend the construction of its road to the length of ten miles, because of the provisions of section 842a, Ky. Stats. That statute became a law in 1902, after the charter had been received by appellee, and it was presumably operating under it, and further by sub-section 5, of section 842a, supra, it is provided, that the provisions of that act shall not affect the powers of corporations, which had theretofore been organized under the general railroad laws of the state.
The judgment is therefore affirmed.