108 Ky. 662 | Ky. Ct. App. | 1900
Opinion of the court by
Afeirming.
Appellants brought suit alleging that they were the owners of a lot on the northwest • corner of Twelfth and Washington streets, in Covington, fronting 190 feet on. the west side of Washington street; that the appellee,, jointly and with others, had wrongfully, and without appellants’ consent, constructed, maintained, ■ and operated certain railway tracks along and over that part of Washington street in front of appellants’ property, so that the entire street at that point is covered with tracks used by steam-railway locomotives and cars, to the exclusion of all other traffic thereon; that the two tracks on the western side of the street are so constructed, maintained, and. operated by the appellee jointly as to cover and occupy the entire western half of the street, up to and adjoining-the sidewalk on that side, to the exclusion of all vehicle-traffic thereon, so that the ends of the ties on that side are-within twelve inches of the sidewalk, that the occupation of the street and the western half thereof is a purpresture, and the street can not be used for purposes of ingress tour egress from the property, or used, for ordinary vehicle' traffic, by appellants or the public, and ordinary vehicles, can not approach the property on Washington street; that, the tracks are so continuously used day and night as to make it impossible and unsafe for any vehicle or other traffic to be carried on over the street in front of the property; and that appellants have no adequate remedy at law for redress of the wrongs and injuries complained of. The-prayer of the petition is for a perpetual injunction re1
Tbe answer, as amended, is a traverse of practically all tbe averments of tbe petition; a plea of tbe five-year statute of limitations, averring use and operation of tbe tracks in tbeir present condition and situation for more than five years before tbe bringing of tbe suit; an averment that Washington street at that point bad never been graded, or in any way improved, by sidewalks or otherwise, or used by tbe public or individuals as a street; and a plea that appellants are estopped to require appellee to remove tbe tracks, averring that tbe street had been used and occupied by railroad tracks, substantially as it was occupied at tbe time of tbe bringing of tbe suit for more than forty years past; that they bad been reconstructed at great expense upon tbe west side of Washington street, in tbe same manner and position which they occupied at tbe time of tbe bringing of the suit, in 1888, long before tbe purchase of the lot in question by appellants, with tbe full knowledge and acquiescence of appellants’ grantors, and that appellants bought the lot with the full knowledge of tbe manner in which tbe tracks were laid, maintained, and operated, and of the manner in which such operation affected tbe property purchased.
By their reply, appellants deny the affirmative allegations of the answer, and allege that tbe appellee bridge company was controlled by tbe officers of tbe Chesapeake & Ohio Railway Company as part of the system of that company, and that, after its acquisition by the railway company, the bridge company, “fraudulently claiming and aéserting the right by municipal and legislative grant to -do so, began to extend its tracks, and so surreptitiously
Upon final hearing, the then circuit judge dismissed the petition, and after a reargument the present circuit judge refused to disturb that judgment.
It may be observed that appellants’ claim is not at all based upon lack of legislative or municipal authority to lay and operate the tracks in Washington street.' The existence of such right is not put in issue by the pleadings, is practically conceded in counsel’s brief, and such evidence as appears on the subject affirms it, and was brought out by appellants on cross-examination. Appellants1’ claim is that neither the Legislature nor the municipality could grant the use of a street to a railroad company so as to divert it from the purpose of its dedication, or destroy the right of ingress and egress and the easement of access of abutting property holders, and that railroad tracks so constructed and operated, and not occupying the street with legislative and municipal authority, are within the rule in Railroad Co. v. Orr, 91 Ky., 109, (15 S. W., 8). The case has here been prepared and argued upon the theory that, conceding the broadest grant possible to the appellee company, it must follow that, no matter what the conditions of the grant, there was annexed and attached to it, as matter of law, a provision that the use by the company of the street should not prevent its use for the passage of persons or vehicles, and therefore that the use in the manner shown in this case was-“wrongful,” and not within the doctrine laid down in the
It is also urged that such an occupation of a city street by railroad tracks as appears in this case constitutes a purpresture, and is both a public and private nuisance, which equity will enjoin at the suit of abutting property holders, in so far as it destroys the abutting owners’ easement of access, and that time will not prescribe a nuisance, nor limitation bar the right of one suffering injury therefrom to enjoin its continuance. It appears from the preponderance of evidence that the tracks opposite appellants’ property were in substantially the same situation thirty odd years ago, but that the use by the railroads has greatly increased; one track which was then a siding being now a main track, and the business of the companies using them having grown enormously. It-is stated by ap-pellee’s superintendent — a most intelligent witness — that on an average about 1,000 cars a day are handled between Covington and Cincinnati, and that there are about seven regularly scheduled freight trains in, and seven out, of Covington daily; the number varying with the amount of business. It appears, also, that about the year 1888 the tracks at this point were reconstructed, and were then placed in almost the same position in which they now exist. It seems conceded that the use of these tracks by the ap-pellee company, and the other companies who use the eastern side of the street, is such as practically to destroy its use for vehicles. That the street has never been graded •or improved, or the grade thereof as a street fixed, or side
The doctrine announced in the cases relied on by appellants, and much of the doctrine so announced went beyond the requirements of the cases under consideration, seems to us to have been modified, or at least restricted, in its application, by the doctrine announced in the Orr Case. That case has been very recently considered in the case of Klosterman v. Railway Co. (Ky.) 56 S. W., 820, and the announcement made that the court adhered to that doctrine, but would extend it no further, and would not apply the statute of limitations to a case where the occupation of the street had been without legislative or municipal authority. The Orr Case was an action for damages, one of the ingredients of the damages being the “prevention of ingress and egress to and from his [plaintiff’s] property.” The court there said: “A railroad must be regarded as a permanent structure,, and, when its construction in the streets of a town or city is authorized by legislative and municipal authority, it can not be said to be a nuisance, when operated in a careful and proper manner. All damages that would naturally result from the operation of the road can be ascertained and determined when the road is being constructed, or, rather, when it is operated, so as to show the damages that will necessarily result from its prudent management. If the right of ingress and egress is af
When, therefore, the tracks under consideration were reconstructed in 1888, and operation commenced over them, the lot owner’s right accrued (conceding that it did not accrue years before). If it was a right to an injunction, he should have sought that remedy then.. If it was a right to compensation by way of damages, that right should have been asserted within the statutory period. Said this court in the Orr Case, supra: “In ordinary actions for trespass to real estate, the recovery is for the injury accruing up to the inception of the action; but, where a railway is constructed in a street, the injury, if any, to the adjacent property is permanent in its character, and continues as long as the road is operated, and the cause of acting for the damages resulting from its prudent operation arises as soon as the cars begin to run, and in the estimate is included the future operation of the road; for, if otherwise, there would be a cause for action every time the cars passed the dwelling of the owner. Town of Troy v. Cheshire R. Co., 23 N. H., 83; Pratt v. Railway Co., 72 Iowa, 249, (33 N. W., 666); Railroad Co. v. Grabill, 50 Ill., 241.” The railroad being lawfully (as to the general public) and permanently established in the street, the right to legal or equitable redress then accrued to the- property holder, and the statute of limitations began to run. In the first opinion of the trial court it was said: “That an action for equitable relief for injury such as is complained of by plaintiffs is barred by the same1 statute that bars an action for damages is recognized in Railroad Co. v. Esterle, 13 Bush, 667, and is affirmed in Hargis v. Sewell’s Adm’r, 87 Ky., 67, (7 S. W., 557.”) In the latter opinion, by the present circuit judge, it was
There is another ground upon which the relief sought in this proceeding must be refused. We do not undertake to decide here upon the proposition earnestly urged by counsel for appellee, that, “where a railroad is author
Whether the injury to appellants’ property in this case is of such character as would entitle them to equitable relief upon application made in due time, or whether it is a “matter of mere damage, for which the law affords adequate remedy,” within the rule stated in Fulton v. Transfer Co., 85 Ky., 653, (4 S. W., 332), is not decided. For the reasons given, the judgment is affirmed.