207 Ky. 813 | Ky. Ct. App. | 1925
Opinion of the -Court by
Reversing.
In 1912, Thomas C. Johnson, who owned a boundary of land along the Kentucky river in Lee county, for a valuable consideration deeded to the appellant for the purpose of straightening its track, a right of way through that boundary. As a part of the consideration for this conveyance, but in an instrument separate from the deed, appellant contracted with Johnson “to construct and maintain a combined freight and passenger station and a sidetrack on the lands described in said deed,” at a point between certain termini to be selected by Johnson, “the said depot to be constructed on or before completion by said railroad company of its contemplated railroad over and through said lands.” The depot was completed in March, 1915, but whether or not this was on or before the completion by the railroad company of the railroad through Johnson’s land cannot accurately be determined from this record. According to appellant’s proof, it was. According to appellee’s proof, it appears, although very vaguely, that it was not. The station as constructed was maintained, although appellee complains bitterly of the manner in which it was maintained, until March, 1919. In this month the United
At the outset of this case, we are confronted by the construction to be placed on the contract of the parties. It is true that appellant obligated itself to construct and maintain a depot and sidetrack, but the contract is absolutely silent concerning the period of time this obligation is to continue. The trial court submitted this case to the jury on the theory that this obligation was a permanent obligation, despite the fact that there was nothing said in the contract about it being a permanent obligation.
Contracts of this character have been before the courts on numerous occasions for interpretation. There is one line of cases which holds that so long as the railroad occupies the right of way which it secured as a part of the consideration for its contract to construct and maintain a depot or sidetrack, it must so maintain the same. See Gray v. Chicago, M. & St. P. R. Co., 189 Ill. 400, 59 N. E. 950.
Another line of cases holds that a literal compliance with such a covenant or condition subsequent is all that is required, and that the railroad may cease at any time it wishes to maintain the track or depot.
A third line of cases, intermediate between the two theories above mentioned, holds that the railroad must continue to maintain the depot or sidetrack until the public interests require their abandonment. This view seems to us to be the correct one. It cannot be true that ah agreement on the part of a railroad to maintain a depot at any particular point, at least without more, is an agreement to keep it there forever. It must be that such an agreement is made subject to the public needs, to the general exigencies of business, to the change, modification and growth of transportation routes, as these may affect the requirements of a railroad company’s business.
. In all of these cases, the suit was for the failure of the railroad company to construct at all a depot or sidetrack, and it was correctly held that the railroad company was responsible in damages for such failure But that is not the question presented in this case, for here the railroad company did construct the depot and did maintain it for a number of years. The question before us is how long must the railroad company continue to
In this connection it may be said that the evidence offered by the appellant concerning the decline in income from Johnson’s station was competent as tending to show the necessity for its abandonment based on the public interest in no longer maintaining at a loss a station which did so little business.
The appellant was not entitled to a peremptory instruction on the record as presented. It so claims, however, on the idea that it was the United States Railroad Administration which removed the station and for whose actions it is not responsible. It needs no citation of authority to support the statement that the railroad company is not responsible for the actions of the railroad administration. In so far as there was any failure to maintain a depot on Johnson’s land during the period of federal control, appellant cannot be held liable. But the period of federal control having passed, and the railroad having been restored to appellant, its obligation, if any, to appellee, suspended during federal control, again revived. The obligation to maintain as long as it continues in effect requires the company to restore for the purpose
The question raised as to the excessiveness of the verdict is not passed on as it may not occur again on the new trial.
For the reasons above set out, the judgment of the lower court is reversed, with instructions to grant appellant a new trial in accordance with this opinion.