131 Ky. 108 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
These two cases, involving substantially the same questions of law and fact, were heard, and will he disposed of, together. In each the city of Louisville sought to condemn the land and right of way of the railroad company for the purpose of establishing two streets across the same. The action of the city was resisted upon several grounds that will he noticed in the course of the opinion.
The first objection, is that the charter of the city of Louisville does not authorize, except in a general way, condemnation proceedings for the purpose of opening streets; and it is argued that, in the absence
But here the right is conferred by necessary implication. It would be a very narrow view of the' statute quoted to hold that it conferred the power to open a street to the line of the railroad, but not the authority to cross it. We think that it follows, as a necessary consequence of the powers to condemn, that this power may be exercised, not only upon private property, but upon property devoted to a public use, especially when the new use does not destroy the previous use, and when both of the uses may be enjoyed at. the same time, without the unreasonable impairment of either. This view is supported by the great weight of modern adjudication. Thus it is
When the new public use will destroy the previous use to which the property was devoted, then the authorities before cited agree that the power must be conferred in express terms and strictly followed, and in this view we concur. But the establishment of these streets across the right of way will not destroy or interfere with, except incidentally, the use of the land for railroad purposes. Both-uses may be exercised in common and without. injury to the other, except in so far as the additional use may entail more care and expense in protecting the public. But this fact Is not sufficient to deny the right. In all parts of the
In this connection, the argument is made that there is no provision authorizing the city to levy a tax to pay the property owner for the land taken or requiring that compensation must be made. The city, of course, no more than any private person or corporation, cannot take the property of a railroad or any property until just compensation has first been made. Section 42 of the Constitution declares, in part, that: “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', which com
The next contention is that- the court erred in sustaining a demurrer to the pleading setting up that there was no public necessity for the opening of the streets, or, in other words, that it was attempted to open the street for private, and not public use. It is very generally held by the text-writers and courts that the question of necessity and public use. both of which enter into the subject of eminent domain, are distinct in the sense that the necessity for the taking is a matter to be determined by the legislative department, State, or municipal, as the case may be, and the question whether it is taken for a public use is for the judiciary. In other words, the prevailing rule and the one in force in this State is that, when
It is also insisted that the court erred in instructing the jury as to the measure of compensation the railroad company was entitled to recover, and in excluding evidence offered by it upon this branch of the cases that were tried in different courts. In the Roberta Avenue Case the railroad company asked the court to instruct the jury that: “If they find for the plaintiff, the city of Louisville, then they shall find for the defendant, the Louisville & Nashville Railroad Company, the value of the land taken, and any depreciation in the value of the remainder of its right of way-caused by establishing the street across it, and will further find for it such sum as will compensate it for the original cost of any structural or physical changes necessary in its property or right of way to establish a reasonably safe crossing, and such further sum as will, with interest at the rate of fi per cent, per annum, produce an income sufficient to pay for the average yearly cost of maintaining such changes, and the average annual cost of maintaining such crossing over the defendant’s right of way.” In the Pennsylvania Avenue Case, the railroad company asked an instruction directing the jury to “award to the defendants as compensation for the use of its land so taken, injured, or destroyed such a sum as will fairly and reasonably represent the diminished value of the defendant’s exclusive right to said track, and such further sum as you may believe from the evidence will be reasonably necessary for the defend-.
As the question is a new one in this State, we feel at liberty to lay down such a rule as will in our judgment award to the company just compensation; and, in doing so, do not feel disposed to follow the authorities cited by counsel for the railroad company, although many of them are from courts of the highest standing and their opinions entitled to weighty consideration. In arriving at what is just compensation to a railroad company, it is appropriate to consider briefly the rights and duties of railroad companies to the public. The charter of the appellant company conifer-red upon it the power of eminent domain, giving it ’the right to acquire by purchase or condemnation land needed for its use in thd service of the public. Having conferred upon it-this power and tie privileges incident thereto, the State in the interests of the public reserved the right to máke such reasonable regula
The company also attempted to show that the opening of these streets would cause water in rainy seasons to be precipitated to its damage in unusual quantities upon its tracks and right of way. If the city so negligently constructs its streets as to put upon the right of way and tracks water that would not otherwise have gone there, or if in opening the streets the topography of the ground is so changed as to cause water, that except for this change would flow elsewhere, to flow upon the right of way in unusual and damaging quantities, the company may have an action for damages against the city, but we think this question was entirely foreign to the issue involved in the
The argument is also made that the company was entitled to compensation for the value of the land in which it owned the fee that was taken by the street and the depreciation in the value of the remainder of its right of way caused by the establishment of the street. The fallacy of this argument consists in the assumption that its land was taken by the street. The city did not offer or desire to take any land, but only the right to use it jointly with the company. As well said in the supreme court case, supra: “The land as such was not taken, the railroad company was not prevented from using it, and its use for all the purposes for which it was held by the railroad company was interfered with only so far as its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street. * * * As the right to open a street across the railroad tracks was all that the city sought to obtain by the proceeding for condemnation, it was not bound to obtain and pay for the fee in the land over which the street was opened.” The fact that the company owned not merely a right of way but the fee does not affect the question. The land, however acquired, was secured for railroad purposes. No other use was- contemplated, and it is entirely safe to say that it will never be put to any other use. So that nothing was in fact taken or sought to be taken except the right to joint use of so much of the right of way as the streets will occupy. All that the company will be deprived of by the streets is the exclusive use of its right of way at these places and the difference in value between the exclusive and the joint use is the full measure of its just compensation.
The only instruction that should be given is one saying to the jury that they must find for the railroad company in such1 a sum as will amount to the difference between the value to the railroad company of the right to the exclusive use of the land occupied by the street for the purposes for which it was being used and the value, after the city acquires the privilege of participating in such use by the opening of the street across it, and the evidence should he confined to this point. Although in some respects more favorable to the railroad company than it had the right to ask, the correct measure of damages was not submitted in either case, and the judgment in each case is reversed, with directions to order a new trial consistent with this opinion.