183 Ky. 316 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
This action was instituted April.2,1914, in the Perry circuit court against the Hazard Dean Coal Co., and the Lexington & Eastern Bailway Co., by Jane’ McIntosh and Jerry McIntosh, her husband, to recover of them damages for their alleged unlawful taking of parts, and injuring the remainder, of a tract of land belonging to Jane McIntosh and appropriating the parts taken for the bed and right of way of a railroad which the defendants constructed and the defendant, Hazard Dean Coal Co., was operating at or near the town of Hazard, between its coal mine and the main line of the Lexington & Eastern Bail-way Co. It was alleged in the petition that the defendants had been duly incorporated and were doing business under the laws of this state, that of the former being the mining and marketing-of coal, and of the latter a common carrier. By an amended petition, filed nearly a year later, the Bluegrass Coal Co., a corporation also created under the laws of this state, was made a defendant and judgment sought against it on the same grounds relied on for the recovery against the Hazard Dean Coal Co., it being alleged in the petition that the Bluegrass Coal Co. had, since the institution of the action, leased from the Hazard Dean Coal Co. its coal mine and railroad and with the railroad yet holds the land of the plaintiffs, thereby continuing the wrongs first committed by its lessor in unlawfully taking and appropriating it.
The defendants filed separate answers, that of the Hazard Dean Coal Co. admitting construction of the railroad on the land claimed by Mrs. McIntosh, described in the petition, but denying her ownership of it and the unlawful taking thereof; also the allegations as to damages contained in the petition, and alleging that the right
On the trial in the court below the jury returned a verdict awarding the plaintiffs $2,000.00 damages against the Hazard Dean Coal Co. and Bluegrass Coal Co., a verdict in favor of Combs on the issues made by the cross-petitions against him, and also a verdict in favor of the Lexington & Eastern Railway Co., the last being directed by a peremptory instruction from the court. Judgment was entered by the court in conformity to these findings. The Hazard Dean Coal Co. and' Bluegrass Coal Co. were refused a new trial, and from so much of that judgment
The grounds urged by appellants for a reversal of the judgment are that the trial court erred: (1) in refusing to direct a verdict for the appellant Bluegrass Coal Co. and dismiss the action as to it; (2) in instructing the jury; (3) in refusing instructions asked by appellants.
It appears from the averments of the petition and the evidence found in the record, that at the time of the institution of this action, Jane McIntosh owned a small tract of land containing fifteen or twenty acres lying on Messer Branch, a tributary of the north fork of the Kentucky river and within the corporate limits of the town of Hazard, upon which she, her husband and children resided, and that the appellant, Hazard Dean Coal Co., then owned and was operating within the corporate limits of Hazard a coal mine situated on an adjoining tract of land; that for the purpose of better enabling it to ship and market the coal from its mine, the Hazard Dean Coal Co. constructed a branch railroad or spur track from the main track of the railroad, owned and operated, through Perry county, by the Lexington & Eastern Railway Co., to its coal mine, which branch railroad connects with the latter’s railroad at a point about 150 feet below Messer Branch and runs up the branch to appellant’s coal tipple, near the mine. As thus constructed the branch railroad grosses and occupies the land of Mrs. McIntosh in two places, bordering the street upon which the land fronts, to the width of the road bed and for a distance of perhaps 500 feet. The branch railroad has since its construction occupied the McIntosh land. It further appears that in constructing the branch railroad the appellant, Hazard Dean Coal Co., filled with dirt and destroyed a valuable and lasting spring on appellees’ land; and, in addition, made on the land a fill of rock and dirt 300 feet in length and ten or twelve feet in height, which cut off, from the street that part of appellees’ land not occupied by the railroad track, and thereby practically destroyed all means of ingress and egress to and from the land to the street.
Appellants’ contention that the trial court should have dismissed the action as to the Bluegrass Coal Co., or at any rate have directed a verdict for it, is bottomed
Constitution, section 13, Bill of Rights, and also section 242, declare:
“Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them.” In interpreting this section we have uniformly held that whether the property affected be taken, injured or destroyed, under its mandatory provisions, the owner must be compensated. It has been held to apply to the removal of dirt on its own land by a railroad company in such manner as to withdraw the natural support of the soil of adjoining land of another owner. L. & N. R. R. Co. v. Culbertson, 158 Ky. 561. In other cases it has been held to' apply where a railroad company so constructs its track or tracks as to prevent the owner of adjoining land from reasonable ingress or egress to and from his property, or to cause necessarily soot and cinders to enter his dwelling. Stickley v. C. & O. Ry. Co., etc., 93 Ky. 323.
In Stickley v. C. & O. Ry. Co., supra, the action was instituted against both the Maysville & Big Sandy Railroad Co. and its vendee, the Chesapeake & Ohio Railway Co., to recover damages for obstructing the right of ingress and egress to and from the plaintiff’s property, and also for injuries to the building caused by the smoke and cinders thrown into it.by passing trains; the injuries*321 complained of though begun by the Big Sandy Railway Co. were continued by the Chesapeake & Ohio Railway Co. after its purchase of the railroad and franchise of the former, which was prior to the institution of the action. A demurrer was sustained to the petition in so far as it claimed damages of the last named company upon the ground that its vendor was alone responsible for the injuries complained of by the plaintiff. In rejecting this defense' and holding the vendee as well as the vendor liable oh the cause of action set forth by the petition, we in part said: “But here it is distinctly averred that the right of property has been invaded by both vendor, while it operated the road, and the vendee since its purchase or lease, in obstructing the right of entrance to the dwelling. It seems to us there can be no good reason assigned for relieving a vendee from all liability of injury that amounts to an invasion of another’s property, where Ills possession is based upon no other title than a tortious entry by his vendor. The act of the vendor in appropriating- the property being wrongful, that of his lessee is equally so. And while the lessee may not be liable for the mode of the original entry, he is, nevertheless, liable for appropriating tliis property to his own use. ... A railroad company which enters upon and appropriates the land of another to its own use, without right, cannot transfer its corporate privileges to another so as to justify a continuance of the wrong in its vendee, as if the latter were an innocent purchaser. It is a taking in both instances without compensation being previously made to die owner. . . . Fulton v. Shore Route Transfer Co., 86 Ky. 640; L. & N. R. R. Co. v. Finley, 86 Ky. 294. ’’
In Lewis on Eminent Domain, section 456, it is said: “No right can be acquired in private property under the power of eminent domain, except subject to the duty of making just compensation therefor; consequently the party originally taking or occupying the property can not transfer to another by lease or otherwise, any right in the property, except subject to the same duty.”
The rule announced in Stickley v. C. & O. Ry. Co., etc., supra, is still recognized and followed in this jurisdiction. Indeed, so carefully has it been adhered to by this court, that in the very recent case of Lexington & Eastern Ry. Co. v. Breathitt County Board of Ed., 176 Ky. 541, it was applied to prevent the railroad company, which undertook to construct its track across a lot over which it had
Appellants object to the instruction given by the trial court on the measure of damages. It does not seem to be claimed by their counsel that the instruction does not correctly state the measure of damages that would be applicable to a case of trespass or continued trespasses to realty, amounting to such a taking of or injury to it as would violate the provisions of the Constitution, supra, but they insist that this is not that character of case, and that if damages were recoverable in the case at all, they were and are only such as might be assessed and awarded in a proceeding to condemn the land for appellants’ railroad under the power of eminent domain, as provided by Ky. Stats., sections 835-840, inclusive. We are unable to sustain this contention. The appellant, Hazard Dean Coal Co., before entering upon appellees’ land or beginning its construction of its railroad thereon, and the appellant Bluegrass Coal Co., folowing its purchase of the property and franchise of that company and before taking possession of the railroad, might have instituted the necessary proceedings to condemn enough of appellees’ land for a bed and right of way for the railroad and thereby secured the desired quantity of land, upon compensating appellees therefor in the amount determined in the condemnation proceedings. But having failed to take. this course and followed an illegal one in obtaining the land, they can not complain that they were proceeded against by appellees as trespassers, or that they were required by the trial court and jury to respond as such, in
It is not to be overlooked that appellants’ railroad is not a common carrier, running from one commercial center to another. It is but a spur track or branch road of a few hundred yards in length, used solely by appellants, or at present by the Bluegrass Coal Co., for transporting its coal from the mine to the railroad of the Lexington & Eastern Railway Co. for shipment to various places of market. The public can ship nothing over it, and its operation, even in the absence of the evils that are shown to have resulted from its existence, can add nothing to the value of appellees ’ land or to their advantage.
While the instruction as to the measure of damages is in some respects awkwardly worded, it seems to set forth with substantial accuracy all the elements proper to be considered by the jury in fixing the damages as a whole, and contains nothing that should have been excluded' from their consideration, or that might serve to mislead them.
In looking to the evidence we find that much of it conduced to prove that the market value of appellees’ land has been greatly lessened by the construction and operation of appellants’ railroad upon it; that the fill, ten feet in height, constituting in the main the bed of the railroad on appellees ’ land, and which borders the .road or street and separates the remainder of the land from it, so greatly obstructs the way as to constitute almost a complete barrier to all means of ingress and egress to and from the land at any convenient point. In addition to this proof, there was other evidence as to the value of the land taken for and actually occupied by the railroad and also as to the destruction of appellees ’ spring by the dirt with which it 'was filled by appellants in building and maintaining the railroad. Evidence introduced for appellants tended to contradict that of appellees as to the question of damages, but this contrariety of evidence required the submission of the case to the jury. Considering the evidence respecting the conditions' referred to and the extent to which they were shown to have affected and lessened the market value of the property, we are not prepared to say that the damages awarded appellees by the jury were excessive.
It is earnestly insisted for appellants that the trial court erred in not directing a verdict in their favor against D. Y. Combs. This contention is based on the following clause found in the written lease from Combs and wife to Jones and other lessors of the Hazard Dean Coal Co., whereby the latter acquired the Hazard Mine,, which other property and franchise lease it in turn as-signed to the Bluegrass Coal Co.
“Further the lessors (D. Y. Combs and wife) covenant, agree and bind themselves to furnish to the lessee a right of way for a railroad track, as located by the lessee’s civil engineers, up to a point on Messer branch, wherever they may locate their tail tracks and tipples.”
It is alleged in appellants’ cross-petitions against Combs, and certain evidence introduced by them conduced to prove, that he did furnish to the Hazard Dean Coal Co., as located by its engineers, the right of way for its railroad, which included the land taken from Jane McIntosh. On this point the great weight of the evidence seems to be that Combs furnished the entire' right of way for the railroad as located by appellants ’ engineers, but that when appellees’ land was reached, instead of locating the right of way upon any part of it, it was by his direction located by the engineer on adjoining land of Johnson and Johnson, which Combs had obtained for the purpose; but that thereafter appellants’ engineer, without his knowledge or consent and without that of Jane
In this connection appellants’ complaint of the court’s refusal of an instruction asked by them on the issue between them and Combs, will be noticed.. The instruction if given would have been mere surplusage, as what it contained was in substance embraced in instruction No. 3, which was given to the jury. This instruction, after setting forth the clause in the lease whereby Combs undertook to furnish the right of way for the railroad track, advised the jury as follows:
“And if you shall further believe from the evidence that said right of way included the strips of land taken of the plaintiff (Jane McIntosh); and if you shall believe from the evidence that a portion of the plaintiffs’ land was so taken by the fill and railroad mentioned by them in their evidence, then you will find for the defendants, Hazard Dean Coal Co. and the Bluegrass Coal Co., assignee of the Hazard Dean Coal Co., in the same amount as you found for plaintiffs against the Hazard Dean Coal Co. Unless you so believe, you will find for D. Y. Combs against the Hazard Dean Coal Co.”
This instruction stated the law on the issue triable as to Combs as clearly as the one offered by appellants would have done if given; hence, the refusal by the court of the one asked was not error.
Our examination of the record fails to convince us of any material error in the admission or rejection of evidence. As in the trial of all such cases, some incompetent evidence crept in ;• but nothing of an incompetent character was admitted that can be said to have prejudiced any substantial right of the appellants.
We have not discussed the issues made by the pleadings affecting the Lexington & Eastern Railway Co., as the verdict returned in its behalf by the jury is not complained of and no appeal or cross-appeal has been taken from the judgment dismissing the action as to it.
The record furnishes no legal cause for disturbing the verdict returned, therefore the judgment is affirmed.