190 Ky. 214 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
The general council of the city of Louisville enacted an ordinance authorizing the extension of Hillcrest avenue from the northerly line of the right of way of the Louisville & Nashville railroad across said right of way to the northerly line of Frankfort avenue, and directing the board of public works and the city attorney to take the necessary steps to condemn an easement over the railroad right of way. Subsequently an order was made by the board of public works directing the condemnation, and a suit was instituted by the city for that purpose. The jury fixed the railroad company’s damages at $250.00 and the company appeals.
It is first insisted that the trial court erred in excluding evidence tending to show that there was no necessity -for the proposed extension. It is the -established rule that the necessity for opening or extending streets, as well as the necessity for condemning rights of way for such purposes, is a matter which has been confided to the decision of the municipal authorities,
Another contention is that the measure of damages announced in the case of L. & N. R. Co. v. City of Louisville, supra, and followed by the trial court, excluded certain elements of damage to which the company was plainly entitled, such as the maintenance of a switch-man’s gate and house, and an annual expenditure for crossing protection, etc., and that that case should be overruled. That case was very carefully considered, and after an extended reference to the authorities and an elaborate discussion of the question, we concluded to adopt the measure of damages prescribed by the United States Supreme Court in the case of Chicago, &c., R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979, and followed by the courts of many other states. In summing up the matter we said: “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.” While this measure of damages may leave something to' be desired in the way of certainty, practically all rules for computing damag’es are subject to the same criticism, and a reconsideration of the question convinces us that it will be better to adhere to the rule complained of than to adopt a new.rule including elements of damage that might never be sustained.
The further point is made that the verdict is flagrantly against the evidence which the jury considered, and had a right to consider, on the question of damages. In
Judgment affirmed.