62 Ky. 135 | Ky. Ct. App. | 1863
delivered the opinion of the court :
Under a charter granted by the Legislature in 1834, the Richmond and Lexington Turnpike Road Gompany constructed a turnpike road from Richmond, Kentucky, to Lexington.
By an amendment of the charter passed in 1857, the company was authorized to contract with the .county courts -of
Pursuant to this authority, the location of the road was so changed as to cross- the river at a point some distance above the ferry, which was then owned by Rogers on the Fayette side, and by Clay on tbe Madison side of the river; and the-company sued out a writ of ad qu d damnum for the condemnation of so much of the 1-and owned by Rogers as was necessary for the construction of the bridge. The jury found that Rogers would sustain damages to the amount of $4,000* and the company traversed the finding. On the trial of the traverse the damages were assessed at $S,500, and judgment was rendered accordingly. From that judgment the company have appealed.
Rogers proved on the trial that the ferry then claimed and used' by him had been claimed and used as such by those under whom he claims for many years before the grant of the charter to the appellants, and for some years before the burning of the clerk’s office of the Fayette county court i-n the year 1803 that he was the owner of tbe bottom on the river for some distance above and below the ferry,, as also the point at which it. was proposed to build tbe bridge. He also introduced an. order of the Fayette county court, showing, that in the year 1855, on. his motion, the ferry was established “at the point, where the Richmond and Lexington turnpike road crossed the; Kentucky river, and where he wished' to establish, a public, ferry.”' This application and order were made under the provisions of the Revised Statutes regulating femes.. On the part of the company it was proved, among other things, that the public would be- greatly ben.efi.ted by the construction of" the bridge.
On this evidence the court instructed the jury, in substance-* that if they believed from the-evidence, that the building of the.
Whether the court, in giving and refusing these instructions, placed before the jury the true criterion and measure of compensation to which the appellee was entitled for the land sought to be appropriated by the company, is the principal question to be considered.
The constitution declares that private property shall not be taken for public use without just compensation to the owner; and it has been repeatedly decided that the compensation thus secured to the owner is the actual value in money of the property taken, which cannot be diminished by any speculative advantage the owner may derive from its appropriation to the public use. But the just compensation is not always limited to the value of the property actually taken. Where, for instance, a railroad was proposed to pass through a farm in such a way as to separate the dwelling and a portion of the improvements from the residue of the tract, and, by running parallel to another public road, to leave between the two roads a long narrow strip of land on which the dwelling and part of the other improvements were situated, the rest of the land and improvements being on the other side of the railroad, it was properly held that the land thus actually taken for the use of the railroad was to be valued with reference to its relative position to the residue of the tract, as well as to the improvements thereon. (17 B. Mon., 178.)
The principle thus settled is in conformity with the provision of the Revised Statutes under which the present proceeding was had. “ The jury shall allow the fair cash value of the land or property proposed to be taken, and also fair compensa
It is contended on the part of the appellee that his ferry franchise is an incorporeal hereditament incident to and growing out of the title of the land, and is thus as much a part and parcel of the land, and of the rights given by the ownership of it, as the trees or the crops which are produced from its soil, and that the appellee is therefore entitled, by the express terms of the 'statute just quoted, to compensation for the injury the ferry will receive.
But this proposition cannot be maintained either under the act of 1796, as subsequently amended, or under the Revised Statutes. Under the former law it was decided in the case of Lawless vs. Reese (4 Bibb, 310) that it was not an objection to the establishment of a ferry that the applicant was not the owner of the land; for cases might arise where the establishment of ferries would be of public utility, and the owners of the land be^ unwilling to keep them; and it was plain that the Legislature had framed the law with a view to cases of that kind. So, in the subsequent case of Brown vs. Givens, &c. (4 J. J. M., 30), it was said that “ a ferry is a public highway, and is established more for the public good than for the individual advantage of the grantee. The interest of the people must, therefore, control and predominate over that of an individual. When a ferry is granted to. one individual, the power is reserved to grant the like franchise to another at the same place if ‘ the common welfare shall require it.’ It is not necessary on any stream, except the Ohio, that the grantee of the ferry should own the land on the stream. All that is required is that the owner shall be notified before a ferry shall be granted to any other person. Another ferry cannot interfere with the landing of a pre-existing ferry.”
The Revised Statutes have introduced no change in the law, so far as the rights of owners of land are concerned. If no
But it is said that even if the ferry franchise is not part and parcel of the land, it is at any rate a business that can be exercised only at that place, and that even a business broken up in condemning land is a subject of compensation.
The introduction of turnpikes and railroads has broken up and destroyed many branches of business. The right to keep a tavern is a franchise very similar to a ferry franchise. It is granted and controlled by the same authority; it is granted for a limited period; it can be exercised only at the place designated in the grant; it is given, not for the mere benefit of the grantee, but for the benefit of the public. The history of public improvements in Kentucky by the construction of railroads and turnpikes would disclose numerous instances of the total destruction of the value of this franchise by the condemnation of the land of the grantee for the use of the turnpike or railroad; but it has never been even claimed, we presume, that the pecuniary injury resulting froln the destruction of the value of this franchise was to be considered in estimating the damages for the land taken.
It is a mistake to suppose that the appellee could, by his ownership of the land above and below his ferry, protect it from the competition of a rival ferry. Under the former law, as we have already seen, it was in the power of the county courts to estabJish in the same vicinity as many ferries as the public welfare required, without regard to the ownership of the land. Under the Revised Statutes no ferry can be established on the Ohio river within less than a mile and a half, nor upon any other stream within less than a mile of the place in á straight line, where any existing ferry was preestablished. (Section 16.) To this extent, and no further, is the grantee of a ferry privilege exempt from the competition of a rival ferry. Suppose the appellee had owned the shore for two miles above and below his ferry, and the necessities of travel had required the establishment of an additional ferry at some point above or below, within the lawful distance, and another person had, upon due notice, obtained the grant of a ferry at such point, would it be contended that in estimating the appellee’s just compensation for the land taken for the use of the new ferry, the jury would be required to take into consideration the loss of profits of the pre-existing ferry, which would result from the establishment of the new one, merely because he was the owner of the land ?
We have not considered it at all necessary or useful to go
In authorizing the grant of this and of all similar franchises, the Legislature did not thereby deprive itself of the power to construct other facilities of trade and travel, better, adapted to the necessities of the public and to the improved and improving condition of the country, although the exercise of such power may, and generally does, result in individual loss and injury for which no legal means of redress are provided. Just compensation for the property taken — not every incidental or consequential injury resulting from the taking — is what the fundamental law guarantees to the owner.
We are of opinion that the burden of proof was on the traverser in the court below, and that he was, therefore, properly allowed the conclusion of the argument.
For the error mentioned the judgment is reversed, and the cause remanded for a new tidal and further proceedings, not inconsistent with the principles of this opinion.