170 Ky. 112 | Ky. Ct. App. | 1916
Affirming;
' The appellant, Mary Matney, a married woman, ' owns several lots in the village of Whitehouse, in John- ■ son eonnty, one of which abnts npon a street known as . Main street, and npon this lot is a dwelling house, sit- ' uated fifty or sixty feet from her property line. In 1887 . the persons who owned the land at that time npon which ,the village is situated, caused it to be laid off into lots, ■ with streets and alleys, and a plat to be made of it, and executed a writing, by which they dedicated all the • streets and alleys, which were indicated upon the. .plat, to the use of the village. Main street was one of the streets so designated on the plat and só dedicated. Main ■ street, at that time, was eighty feet in width, but thirty : feet of its width on the southwest side of the street was •dedicated as a place for the construction of a railroad, . but until it was used for that' purpose, it was to be left . open as a part of Main street. The appellant’s lots are ■ upon the northeast side of Main street, and are four in number and adjoin each other; the one upon which the ■ dwelling stands abuts upon Main street, and the other .three lie in a row directly back of it from Main street, and between it and the Levisa Fork of Sandy River. A street called Oak street runs from the' river in a south- • west direction and intersects Main street, and appellant’s lots abut upon it upon the northwest side. An alley called Cherry alley runs from the river and intersects • Main street upon the opposite side of appellant’s lots from Oak street, and the lots upon that side abut upon this alley. The appellant claims to have bought the lots toward the latter part of the month of February, 1904, and her vendor executed to her a writing evidenc- ' ing the transaction, which has been since lost, but that the lots were, however, conveyed to her by a deed in • 1909. The appellee, Chesapeake & Ohio Railway Company, denied her ownership of the lots- at any time. Main street was never accepted as a street by the au- • thorities of the village, as it never became incorporated as a town until within the last three or four years. A . public highway was never established over the street by the county authorities, but after its opening as a street, the public traveled over part of it and made use ■ of it as a road. The county authorities never did any . act, in regard to the street, which could be considered
The cause of action, which appellant set out in her petition, was that she was the owner of the lots; that the street had been dedicated to' the use of the owners of the lots in the village, .in 1887-; that the owners -of the lots' had-used it as a public easement since its dedi
The appellee traversed all of these averments, and relied upon the five-year statute of limitations.
The appellant replied, denying that the five-year statute of limitations applied, and, also, in avoidance of that plea, alleged that appellant was a feme covert at the time of the injury and since.
The evidence offered upon each side was upon the questions as to when the first track was laid in the street, upon the fifty feet dedicated to the use of the village and when appellant became the owner of her lots; the location of appellant’s lots, and dwelling; the nature of the work done in the construction of the tracks; the crossings upon the street adjacent to appellant’s property; the removal of the dirt in the construction of the tracks, and the proximity of the diggings to appellant’s lots; the width from appellant’s property line to the tracks; the market value of appellant’s property just before it was generally, known that the tracks were going to be constructed, and its market value after their construction; the soot-and smoke sent forth by the engines- hauling the cars, and its effect upon appellant’s house.
The jury returned a verdict in favor of appellee, and' a judgment was rendered accordingly, dismissing the petition. A motion for a new trial being denied, the appellant seeks a reversal of the judgment upon the ground that the verdict of the jury is palpably contrary to the weight of the evidence; and further, that the appropriation of the street by appellee was unlawful, and for that reason the appellant was entitled to recover.
The fact that the village was not incoiyorated, nor the street accepted by the municipal authorities does not.
If a railroad is lawfully constructed in a street by the consent of the municipal authorities, and its construction and prudent operation obstructs the exercise of an abutting property owner’s right to the reasonable use-of the street for ingress and egress, and its proximity • to the property is such, that the operation of trains over • it necessarily causes soot and cinders to be thrown into the houses and against them, to -their injury, it is held, to be a permanent injury to the property, and the property holder may recover damages which he has suffered thereby, and the measure of damages is the diminution in the market value of the property occasioned by the' location of the tracks in the street, and the result of the prudent operation of the trains over the tracks. Stickley v. C. & O. Ry. Co., 93 Ky. 323; J. M. & I. R. R. Co. v. Esterle, 13 Bush 667; Elizabethtown, Etc. Co. v. Combs, 10 Bush 382; Klosterman v C. & O. Ry. Co., 114 Ky. 426. The damages resulting from the entire permanent injury to the property can be sued for and recovered in one action. The further rule is that, if the structure complained of is a temporary one, or the injury complained of arises from a negligent construction of the structure, or its erection is unlawful, or the trouble can be corrected at a reasonable expense, then the injury to the property is to be considered temporary, and the property owner may secure recoveries as from time to time his property incurs injuries. The measure of damages in such cases is the decrease' in the rental value of the. property, if rented; if occupied by the owner, the damage to its use and occupation. Louisville v. Coleman, 22 R. 64; Klosterman v. C. & O. Ry. Co., 22 R. 192; Finley, v. Williamsburg, 24 R. 1338; L. & N. R. Co. v. Cornelius, 111 Ky. 752; Childers v. L. & N.
The appellant complains-upon this appeal that she did not have a fair trial, because the appellee was unlawfully in the street; that it had without lawful authority appropriated the street, and for that reason she should have recovered in the action.
It is not necessary to decide in this case what effect the unlawful appropriation of the street by appellee has upon the rights of appellant, as she elected to treat its location in the street as a permanent structure, and to treat it as though it was lawfully there, and to recover from it the damages to her property only, to which she had a right of recovery, if it had been lawfully placed in the street. There is no claim that the trains passing over the road have not been prudently and skillfully operated, but the damages sought are for the diminution in the market value of her property, because of the obstruction to her reasonable use of the street for egress from and ingress to her property, and from the throwing of smoke, soot and cinders upon and against her dwelling and a storehouse on the lot, by engines passing over the road in the usual way. That she has the right to elect to treat the railroad tracks in the street as permanent structures, and as if lawfully constructed there, there is no doubt. In Stickley v. C. & O. Ry. Co., 93 Ky. 329, this court said:
“ There has been some criticism on the doctrine requiring a recovery in one action for that which is a permanent injury. In its application in cases involving the exercise of the right of eminent domain the doctrine must be recognized as sound and when a corporation enters and constructs its railway without the payment of compensation, and the owner sees proper to hold the company responsible at law for damages for the construction of the road, it seems to us it is a consent to the taking, and a recovery must apply to all damages for the permanent injury sustained by reason of the prudent operation of the road.”
‘ Upon. the trial, the witnesses were examined as to ; the-"market value of the property before the building of;
Hence, the judgment is affirmed.