Louisville Property Co. v. Com.

• Decision Date: 08 February 1912
• Citation: 143 S.W. 412,146 Ky. 827
• Parties: LOUISVILLE PROPERTY CO. et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

143 S.W. 412

146 Ky. 827

LOUISVILLE PROPERTY CO. et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 8, 1912

Appeal from Circuit Court, Todd County.

Action by the Commonwealth of Kentucky against the Louisville Property Company and another. From a judgment for plaintiff defendants appeal, and plaintiff prosecuted a cross-appeal. Reversed on the appeal, and affirmed on the cross-appeal.

Nunn J., dissenting.

Benjamin D. Warfield, Selden Y. Trimble, C. H. Moorman, and Perkins &amp Trimble, for appellants.

Geo. F Pickett, C. G. Barrieman, Beard & Marshall, and S. Walton Forgy, for the Commonwealth.

LASSING J.

In this suit the commonwealth sought the escheatal of certain property owned by the Louisville & Nashville Railroad Company, on the ground that it had not been needed or used in the conduct of its business during the five years next preceding the date upon which the suit was instituted. The company denied that it was subject to escheat. Upon this issue the case was tried, with the result that the court held part of the property subject to escheat and certain other portions thereof not so subject. Both parties are dissatisfied with the judgment. The railroad company prosecutes this appeal, and the commonwealth a cross-appeal.

The property in question consists of seven tracts of land lying along the railroad right of way at Guthrie, Ky. All of this property was sold at master commissioner's sale on June 25, 1902, and the railroad company became the purchaser thereof. For reasons of its own, but which are not material to the determination of the issues here, it caused the title thereto to be placed in the Louisville Property Company; but it is made clearly to appear that, while the title was held by the Louisville Property Company, it was in fact paid for and owned by the Louisville & Nashville Railroad Company. The Central Trust Company of New York had a mortgage upon this property, and it was made a party. It set up and asserted a lien upon the property to secure and satisfy its mortgage debt.

From the conclusion which we have reached, it is necessary to consider but one question upon this appeal, to wit, whether or not in purchasing and holding this property for more than five years under the circumstances developed by the evidence in this case the railroad company has violated section 192 of the Constitution and section 567 of the Kentucky Statutes (Russell's St. § 2153), enacted for the purpose of carrying into effect this constitutional provision.

At Guthrie, the Memphis branch of the Louisville & Nashville Railroad crosses the Henderson branch, at approximately right angles, and the location of these several tracts of land in controversy is shown by the accompanying map. Tracts 1 and 2 adjoin, and are, in fact, one body or tract of land, lying at the northwestern intersection of these two roads. Tract 3 occupies the southwestern intersection, tract 4 the southeastern intersection, and tract 5 the northeastern intersection. The Memphis branch runs nearly north and south, and the Henderson branch east and west. The depot is built on tract 3; and a hotel is built upon tracts 1 and 2, near the intersection of the roads and just north of the depot. An arm of a Y connecting these roads passes over the northwest corner of tracts 1 and 2. Another arm of a Y connecting these roads passes over the northeast corner of tract 5. Tract 4 is a park, with shade trees, walks, a pool, and a fountain therein. It lies just across the track of the Memphis road from the depot, and near the hotel property. Tract 8 lies south of the depot, and is crossed by an arm of a Y, which has been double tracked. Tract 9 lies east of the Memphis track and south of the Henderson track, and had not been used by the road for any purpose at the date of the institution of this suit, unless a track had been laid on it near the coal bin and chute, designated on the map by the letters "D," "E," "F," and "G." Tract 9 is the only one of any considerable size, and it contains about 80 acres. The lower court held that tracts 1, 2, 3, 4, 5, and 8 were not subject to escheat, and that tract 9 was.

It is not seriously contended on this appeal that the court was in error as to tracts 3, 5, and 8, as it is shown that each of these had been actually used by the railroad exclusively in connection with its business. But it is earnestly insisted that the court was in error in holding that tracts 1, 2, and 4 were not subject to escheat; and the company seeks a reversal of the court's ruling as to tract 9. Tracts 1 and 2 are used by the company in exactly the same way as are tracts 5 and 8; i. e., one arm of a Y is run across them. If this was the only use to which they were subjected, it is doubtful if the commonwealth would insist upon a reversal as to this tract. But because it has a large hotel upon it, which is rented out by the company for $1,800 a year, it is urged that a different rule should be applied to it from that applied to tracts 3, 5, and 8. The railroad company insists that it is compelled to maintain and operate, or have operated, a hotel at this point for the accommodation of its employés and passengers. Guthrie is shown to be an important railroad center. As many as 80 trains pass in and out of there every day. Many of the crews who operate these trains change there, and at least 300 men in the employ of the company are compelled to eat there daily; and many of them must be provided with some suitable and convenient place to sleep. So that the company insists that it is absolutely indispensable to the proper conduct of its business that suitable accommodations be provided for its employés at that place; that not only is this so, but that many passengers on its through trains, upon which diners are not carried, are daily fed there; that it is required to provide, not only for the care of the passengers, but for their comfort, and that the right of a railroad to provide for the comfort of its passengers, in the way of furnishing meals at suitable and seasonable hours, is universally recognized.

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Combating this idea, that the hotel is a necessary adjunct to the successful operation of its road, it is urged that section 210 of the Constitution expressly prohibits a common carrier from engaging in, owning, operating, or managing, directly or indirectly, any business other than that of a common carrier, and that section 192 of the Constitution prohibits a corporation from engaging in any other business than that expressly authorized by its charter, and that section 567 of the Kentucky Statutes prohibits any corporation from engaging in any business other than that expressly authorized by its articles of incorporation and amendments thereto; and hence no plea of necessity can be used to override these plain provisions of the Constitution and statutes; that, as no authority is given any railroad to run a hotel, it is without power to do so, and the use to which it puts tracts 1 and 2 is an unauthorized use, and hence no use at all. Neither the provisions of the Constitution nor the provision of the statutes quoted have heretofore been given so strict or narrow a construction as counsel for appellee would have applied. On the contrary, wherever the question has arisen, courts have held, not only that it was the right, but the duty, of a common carrier to make suitable arrangements for providing meals for its passengers and employés at seasonable hours and proper places. The dining car upon through trains is looked upon, not as a luxury, but as a necessity; and, if a railroad may carry a diner in connection with its train, and for hire feed the passengers thereon, we see no good reason why it might not, with equal propriety, provide suitable hotel or restaurant accommodations along its road to meet a similar necessity. In either case the company is engaged in furnishing food for its passengers and employés for hire. This is an incident to the proper conduct of its business. In Hutchinson on Carriers, § 611, the author thus states the generally accepted rule as to the duty of a common carrier to provide refreshments for its passengers: "The carrier is also required, where the length of the journey makes it necessary, to allow the customary intervals, and at the usual places, for refreshment of his passengers; and such usages cannot be varied at his pleasure or caprice; for every passenger is understood to contract for the usual reasonable accommodations of this kind, and they may have been the reasons for preferring his conveyance to the less convenient arrangement of another carrier."

It may be argued that, while it is the duty of the carrier to stop at suitable intervals to allow the passengers to refresh themselves, it is not the duty of the company to furnish these refreshments. This argument is well answered by 1 Wood on Railroads, § 170, in which he says: "There is no question but that railroad corporations have as auxiliary or incident to their main or authorized business all the powers which an individual would have under the same circumstances and the extent of these powers is to be determined, not only by reference to the express powers conferred by the charter, but also to the nature, extent, and necessities and conveniences of the business and of the public. They have the power to take and grant property, and assume obligations, in the same manner that an individual might, for the construction of their road, and for supplying it with the necessary machinery, appliances, and conveniences for the conduct of their business in all its departments. Thus it has been held that a railroad company may erect a telegraph along its roadway, as incidental to its primary business. So it has been held that it may put up...