104 Ky. 186 | Ky. Ct. App. | 1898
delivered the opinion of the court.
The appellant, Willis, does not seek to recover damages to property which abuts on a street along which the tracks of the appellees are constructed; but his house, which he claims is damaged, is situated on a lot fronting on Montgomery street, in Parkland, across which the railroad track diagonally passes at a point about 75 feet from the house, and continues a southeast course until it passes the house at a point about 150 feet from it. The several tracks of the appellees are so constructed that the track we have described and other tracks form substantially what is known as a Y among railroad men, one angle of which is in front, and another east, of Willis’ house. As well as for other purposes,, these tracks are used for putting cars into trains and switching. The grade is such at one place that it takes two engines to carry heavy freight trains up it. The evidence conduces to prove that at least one hundred locomotive engines pass daily over the tracks by. Willis’ house; that the freight trains sometimes are necessarily forced to remain on the tracks twenty or thirty minutes; that the trains are moving on the tracks during the night and da'y; that great' noises are made by the engines; that smoke and cinders are forced into the house; that the vibration from the operation of the trains caused plastering on the walls of the
So far as we are aware, the cases which have reached this court involving the question of the liability of railroads for constructing their tracks so as to impair ingress and egress, and for throwing smoke, soot, and cinders, to the damage of property, were brought by abutting owners. In some of these cases the court discussed the character of interest which the abutting owner had in the street which had been dedicated to public uses. Possibly, the court thought it necessary to do this with a view of determining the right of the suitor to recover the damage resulting from the abridgement of his ingress and egress. Although the abutting owner or his vendee may never have owned the land dedicated to the public as a street, still his right to the use of it is the same as that of any other inhabitant of the city, or the abutting owner who lives on the opposite side of the street, from whom the city may have procured the land constituting the street between their property. Any abutting owner so situated, who has his means of ingress and egress impaired, has a cause of action which is as good as if he originally owned the land used as a street, and dedicated it to the city for the purpose of a street. It was said in J., M. & I. R. R. Co. v. Esterle, 13 Bush, 674, that “the owners of the fee are as completely subordinated to the superior rights of the municipality to control, manage, and
This court has adjudged that for injury to the property of abutting owners, by the falling of soot and cinders upon it, or from smoke entering the house, or from vibration of running trains, an action can be maintained. Whenever a railroad confpany has been granted authority to use a street, it is accompanied with an implied qualification that its use shall not unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Such a grant does not license the railroad company to use the street in disregard of the private rights of others, and with immunity for their invasion. Legislative authority to so use a street does not deprive a citizen of the right to maintain an action for damages for any special inconvenience and discomfort not experienced by the public at large. As to a railroad over a public street in a city,' it is said in Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S., 331 [2 Sup. Ct., 728]: “If, when used with reasonable care, it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars, with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation.” We think the language quoted states correctly the character of injury for which no action can be maintained. The judgment is reversed for proceedings consistent with this opinion.