91 Ky. 625 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OP THE COURT.
As appears from Ms petition filed November 4, 1886,
It further appears that he has upon that lot a hominy mill and grain elevator, through the center of which is a way from Duncan street to Portland avenue for wagons to pass; but not being wide enough for them to be turned around within the building, they necessarily pass from one street to the other.
It was, in substance, alleged in the petition that the defendant, now appellant, the Kentucky and Indiana Bridge Company, had threatened, and unless immediately restrained would construct a railway track along Portland avenue in front of and around the plaintiff’s property, making a curve nearly opposite the entrance thereof, whereby he would be deprived of reasonable use of the street in connection with the business for which the buildings were erected and adapted, and his property greatly injured and lessened in value. An injunction, as prayed for, was granted by the chancellor, restraining the defendant tearing up Portland avenue, or laying any track thereon between Fourteenth and Fifteenth streets until further order of court.
November 9, 1886, an answer was filed, in which was a denial that defendant had threatened or intended to
November 23, 1886, the defendant made, in open court, a motion for modification of the injunction so far as not to forbid laying a single track railroad in Portland avenue, the whole question involved in the injunction to be reserved for final action; and November 26 an order was made modifying the injunction to the extent of permitting defendant to lay a single track railway along and in center of Portland avenue in front of plaintiff’s property in the manner prescribed in the order, and upon the condition that freight (¡rains shall not be run in front of plaintiff’s property more than twice for and by each company using said track during business hours of the day. June 24, 1887, upon final hearing, judgment was rendered to the effect that the temporary injunction as modified be perpetuated. But a motion for new trial having been made, was, January 11, 1888, sustained, and judgment at the same time rendered of same effect as that of June 14, 1887, except right was given to defendant to apply for further modification of the injunction thereby made perpetual, when it should thereafter appear, upon other proof of facts arising, that such further modification is proper.
May 4, 1888, defendant moved the court to modify the judgment of January 11 by striking out the condition that freight trains shall not be run in front of plaintiff’s property more than twice for and by each
This appeal was granted from the two judgments mentioned and the transcript filed November 22, 1888, and, upon being called, was, March 9, 1889, continued for oral argument; but September 1.0, 1889, before it was reached for argument, appellee moved this court for a rule returnable on September 26, 1889, against appellant to show cause why it shall not be compelled to restore Portland avenue in front of appellee’s property to the same condition it was in prior to the time that any railroad track was laid thereon; and further, to show cause why it shall not be otherwise punished for contempt in disobeying the order of injunction herein.
A response to the rule was filed September 26, and at the same time a motion was made for this court to modify the judgment of January 11, 1888, by striking from it the condition as to the number of freight trains to be run during business hours of each day. Subsequently the case was argued orally and briefs filed, and submitted on- the merits as well as on the motion; but properly the motion by appellee must be first considered.
It is stated in affidavits of appellee and others, upon which the motion is based, that on Saturday evening, July 30, 1889, and the succeeding Sunday and Sunday night, appellant tore up Portland avenue in front of appellee’s property, and then constructed double tracks of railroad, one of the tracks being curved around the property and within a few feet
As violation of the injunction in both respects mentioned is substantially admitted in the response, the simple inquiry is, whether the excuse or justification presented is sufficient to permit this court to overrule the motion of appellee.
That the issue between the. parties and the rights and duties of appellant as determined and defined by the judgment of the chancellor might be clearly understood, we have referred at some length to the pleadings and steps taken in the case in the lower court, and it is thereby rendered too plain to be misunderstood, even if the judgment was not, though it is, full and explicit, that' no right was asked by appellant, nor given to it by the chancellor, to construct any other than a single track in the centre of Portland avenue, opposite to the lot of appellee; and it was stated by appellee in its answer that no switch track was desired or asked near thereto, but that connection with the yards of the two companies using appellant’s bridge, to wit: The Ohio and Mississippi and Louisville, New Albany and Chicago, would be made east of his lot and near to Fourteenth street. The construction, in July, 1889, of a switch track with appellant’s road in Portland avenue, in front of
It is, however, stated in the response that the con necting track complained of between the track of appellant and the freight yard of the Louisville, New Albany and Chicago Railroad Company was not laid, nor has it been operated by appellant, nor been at any time in its possession or under its control, but was laid and operated by the Louisville, New Albany and Chicago Railroad Company, which is not a party to this action.
It appears that when the street was being torn up in July, 1889' the Louisville, New Albany and Chicago Railroad Company had no authority from the general council of Louisville to construct a track on Portland avenue,' and those engaged in tearing up the street for such purpose, if in the service of that company, were liable to arrest and punishment therefor ; but when applied to by appellee to cause arrests made, the city attorney declined to do so, because Moore,, president of appellant, the same person who made and swore to the response under consideration, informed the city attorney in writing the track in question was being constructed in pursuance of an ordinance of the city council granting the right to appellant. . In view of that fact, there can be no question of appellant, by its of&cers, aiding, and in fact causing, the track to be constructed. Besides,
The further argument that violation of the injunction in the manner mentioned should be overlooked by this court because it was practically impossible to avoid it, except by failure of appellant to perform a plain imperative duty to the public, amounts to no less than defiance of all judicial authority; for it is equivalent to an assumption that a railroad corporation, because performing for its own profit a qioasi public duty, may determine for itself what are its relative rights and duties, and at its pleasure and in its -own way exercise them, though contrary to a .judgment just rendered that has defined and fixed them. And such violation occurring while appeal from that judgment is pending, must be treated as especially in contempt and defiance of this court, because the lower court, for the time, has no power to enforce obedience to its judgment.