125 Ky. 104 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
When the Louisville & Nashville Railroad was built through Warren oeunty, the company was unable to agree with Mrs. A. R. Strange for the right of way across her tract of 120 acres of land. A condemna
The situation is shown on the accompanying map, on which the spot marked “crossing” represents the old crossing, and the spot marked “X” represents the crossing adjudged to be put in. The Strange farm is
The rights of the parties depend upon the construction to be placed upon the following provision in the charter of the railroad company: “Be it further enacted, that whenever, in the construction of said road or roads, it shall be necessary to intersect any other established road or way, it shall be the duty of said president and directors so to construct said road across such road or way as not to impede the passage of persons or property along the same; or where it shall be necessary to pass through the land of any person, it shall also be their duty to provide for such person proper wagon ways across said railroad from one part of the land to the other; and if said company shall fail to provide proper wagon ways across said road, as provided in this section, it shall be lawful for any person to sue said company and be entitled to such damage as a jury may think him or her entitled to for such neglect. ” It is insisted for appellant that it fully discharged the duty resting upon it by virtue of this provision of its charter, so far as this tract of land was concerned, when it built the original crossing, and that it is not required to construct additional crossings when the farm has been subsequently divided up into smaller farms. Reliance is placed upon the words, “in the construction of said road or roads,” as showing that the charter provision applies only to conditions as they existed at the time the road was constructed. While there is s'ome force in this, in construing the provsion we must look to the whole of it, and to the intention of the Legislature in enact
The question of .the. proper construction of the section as -to private crossings was before us in L. & N. R. R. Co. v. Pittman, 53 S. W. 1040, 21 Ky. Law Rep. 1037, in which the defendant relied on limitation in bar of an action similar to this. There we said: “It was the duty of appellant, when the road was first constructed, to provide proper wagon ways across its road for the use of the landowner whose land was divided by the line of the road, and this duty existed on appellant all the time from the first construction up to the present. What may be a proper and necessary wagon way to-day might not have been necessary at the time of the construction of the road in 1865.. At the date of the original construction of the railroad the whole of appellee’s farm may have been forest, and at that time no roadway would have been necessary. As it is shown now to be in cultivation, a wagon way is necessary and proper. We a.re of opinion that the provision of the charter, supra, makes the duty, as well as the liability for a failure, continuing. The question is always in
The crossing which was put in for Mrs, Strange in 1858 may have been all that she required, and all that was necessary from the condition of the farm at that time or the way it was used; but as conditions change, and a necessity for a crossing arises from one part of the tract of the land to another part, the duty rests upon appellant to provide the crossing. Were the statute construed otherwise, it would be substantially no benefit to the landowners, and the very result would be brought about which the Legislature aimed to prevent. The Legislature did not intend that the building of the railroad should operate as a bar to the development of the country through which it ran, and there is the same reason for holding the duty a continuous one in the case of private crossings as in the case of public crossings. We do not mean to hold that a tract of land may be cut up indefinitely into small lots lying on either side of the railroad, and that a crossing may be established for each lot. That question is not now presented. We only decide now that it is the duty of the railroad under its charter to put in such crossings as are reasonable and proper for the use of the land, and that the facts shown here make it reasonable and proper that the crossing should be put in.
Our attention is called to Clarke v. Ohio River Railroad Company, 39 W. Va. 732, 20 S. E. 696, as sustaining a contrary conclusion. The case so holds, but it was based upon a statute materially different from that quoted. The statute there showed on its
We are also referred to the case of Stump© v. Missouri Pacific Railway Company, 61 Mo. App. 357. But the statute in that ease' was also different. It concluded with' these words: “If any corporation aforesaid shall, after three months from the time of the completion of its road through or along the lands, * * * fail, neglect or refuse to erect or maintain in good condition any fence, opening or farm crossings, * * * then the owners or proprietors of said lands * * !f may erect or repair such ■j * * farm crossings,” etc.
The operation of the statute necessarily did not extend beyond the completion of the road. The case of Jones Fertilizing Company v. Cleveland, &c., R. R. Co., 7 Ohio N. P. 245, rests upon a similar construction of the statute there before the court. The case of People v. Railroad Co. 44 N. W. 934, 79 Mich. 471, 7 L. R. A. 717, has no application, for this is not a statute passed after the railroad was built, but is a part of its charter, under' which it took its right of way from Mrs. Strange in the exercise of the right of eminent domain. In Thompson v. L. & N. R. R. 76 S. W. 44, 25 Ky. Law Rep. 531, the railroad did not intersect Thompson’s land.
Judgment affirmed.