110 Ky. 788 | Ky. Ct. App. | 1901
Lead Opinion
delivered the opinion op the court.
This action was brought by the appellant, the Louisville' & Nashville Railroad Company, against the appellee, the-Bowling Green Railway Company, to enjoin it from extending th’e tracks of its electric street railway across the trackis of the railroad of appellant -at grade on Main street, in the city of Bowling Green. The line of the street railway, as originally constructed,. ran from the boat landing-on Barren river up Gordon avenue, and crossed the railroad track at an underneath crossing, passing then along Adams street, went up Adams street to Main. The street railway company objected to this route because it passed1 through a sparsely-settled portion of the city, where there-was little custom; and the underneath crossing at the railroad was regarded dangerous, as it was in a curve, andi. the motorman could not see’ teams, approaching the cross
A number of interesting questions have been presented on the appeal:
1. It is insisted that, as the railroad commission has. not authorized this crossing, appellee is without legal authority. The statutes relied on are -as follows: “Every corporation proceeding to construct its road in or through any county shall file and ihave recorded at its expense in the county clerk’s office of such county, a map of the route, showing the center of said proposed road, and the width thereof; and if, after a road is located, it is desired to change its location, or the proposed route is changed, as.
It is urged for appellant that appellee has not municipal authority for the construction of its track along Main street as proposed. By an ordinance of the city council passed in 1888, the city granted to the street railway company the right to construct its track on Main street from the reservoir to the city line on the west, and to operate its cars thereon by animal power or electricity for the term of fifty years. As will be seen from the map, the street oar company did not construct its line then on the part of Main street now in question. There was no limitation in the ordinance as to the time in which the tracks were to be laid throughout Main street; and appellee would have the right, nothing else appearing, to extend its track as it might be able to do from time to time.
3. This brings us to appellant’s pivotal contention, — that the crossing will be so dangerous that the court should not permit its construction. The weight of authority is to the effect that there is no jurisdiction in equity to enjoin a street railway from crossing a steam railroad’s' track at grade in a public street unless such jurisdiction has been conferred by statute or some constitutional provision. Elliot, Roads & S. (2d Ed.) section 699; Texas & P. Ry. Co. v. Rosedale St. Ry. Co., 64 Tex., 80; Kansas City, St. J. & C. B. R. Co. v. St. Joseph Terminal R. Co., 97 Mo., 457, (10 S. W., 826), (3 L. R. A., 240); Buffalo R. Co. v. Du Bois Traction Pass. Ry. Co. (Pa.) 24 Atl., 179; West Jersey R. Co. v. Camden, G. & W. R. Co., 52 N. J. Eq., 31, (29 Atl., 423); Chicago & C. T. R. Co. v. Whiting, H. & E. C. St. Ry. Co., 139 Ind., 297, (38 N. E., 604), (26 L. R. A., 337); Same v. Hammond, W. & E. C. El. Ry. Co., 151 Ind., 577, (46 N. E., 999); Chicago, B. & Q. R. Co. v. West Chicago St. R. Co., 156 Ill., 255, (40 N. E., 1008); New York, N. H. & H. R. C. v. Bridgeport Traction Co., 65 Conn., 410, (32 Atl., 953), (29 L. R. A., 367); Railroad Co. v. Steel, 47 Neb., 741, (66 N. W., 830); Philadelphia, W. & B. R. Co. v. City of Wilmington R. C., (Del. Ch.) 83 Atl.,
The heavy line on the plat iff the black line her6 referred to, and the chain .line is the red one.
Dissenting Opinion
Dissenting opinion by
While I concur in the majority opinion upon all its conclusions of the law, I dissent from the finding that the crossing in question is “reasonable and feasible,” as contemplated by section 216 of the Constitution.