Chesapeake & O. Ry. Co. v. Greenup County, Kentucky

Citation175 F.2d 169
Decision Date03 June 1949
Docket NumberNo. 10704.,10704.
PartiesCHESAPEAKE & O. RY. CO. v. GREENUP COUNTY, KENTUCKY.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

LeWright Browning, Ashland, Ky., LeWright Browning, Ashland, Ky., on the brief; Browning & Gray, Ashland, Ky., of counsel, for appellant.

Oscar Sammons and Thomas E. Nickel, Greenup, Ky., Oscar Sammons, Greenup, Ky., John W. McKenzie, Ashland, Ky., and Thomas E. Nickel, Greenup, Ky., on the brief, for appellee.

Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

This condemnation proceeding was brought in its county court by the appellee, Greenup County, Kentucky, against the appellant railroad company. Pursuant to authority granted by Kentucky Revised Statutes (sections 178.120 and 416.110), the county sought to condemn a certain easement for a highway grade crossing over the tracks and right of way of the Chesapeake and Ohio Railway Company; and, by petition of appellant on the ground of diversity of citizenship, the action was removed to the United States District Court for Eastern Kentucky.

In its original and amended answers there, the railroad company challenged the right of Greenup County to maintain the condemnation proceeding. The motion of the county to strike the second and third vital defenses set up in appellant's amended answer was sustained; and judgment was subsequently entered condemning the right of way or easement sought and fixing its value at $500. The district judge filed a carefully prepared opinion, reported in 71 F.Supp. 652, in which are cited the authorities deemed by him to impel the conclusion that the second and third paragraphs of appellant's amended answer which constituted its complete defenses, were legally inadequate. Being denied the right to adduce proof in support of its insistence that in the circumstances of the case the county has no right to condemn the easement in question, the railroad company has appealed to this court.

In ruling upon the motion to strike, the district court was careful to accept as true the allegations of appellant's answer, quoted extensively from that pleading, and considered no extraneous circumstances. We, too, look to appellant's stricken answer for the factual setting and may not consider statements of fact in appellee's brief which are not disclosed in the record.

One of the most traveled highways in Kentucky is U.S. Route No. 23, which crosses the Ohio River near the western boundary of Greenup County and runs thence eastwardly parallel with the Ohio River through the City of Greenup and on to Ashland, Kentucky. This highway crossed at grade the tracks and right of way of the Chesapeake and Ohio Railroad at White Oak Crossing, some 3,600 feet east of the eastern corporate limits of the City of Greenup. Connected with Route 23 was another highway which extended through Greenup County into Carter County, and connected with U.S. Route 60 near Grayson, Kentucky. This latter highway crossed the tracks and right of way of appellant at the Argillite Road Crossing immediately east of the eastern corporate limits of the City of Greenup. A roadway known as Collins Lane also connected with U.S. Route 23 and crossed the tracks and right of way of appellant at a point between the White Oak and Argillite Road crossings. These three crossings were especially dangerous to the traveling public, because of their location and the heavy traffic and the numerous trains passing over them.

In 1938, the Department of Highways of Kentucky, supplied with Federal funds, entered into a contract with appellant to eliminate the aforementioned grade crossings and to construct in place of them an overhead crossing at a point approximately on the location of the Argillite Road Crossing. Inasmuch as the law forbade the allocated funds for the elimination of grade crossings to be used for obtaining requisite rights of way, or for settlement of property damage claims which might arise out of the contemplated improvement, it was necessary that appropriate action be taken by the County of Greenup and the City of Greenup for closing the grade crossings proposed to be closed.

Accordingly, following negotiations, a contract was executed on June 7, 1939, by and between the appellant, the appellee, and the City of Greenup, which provided in substance that appellant would contribute and pay to the Department of Highways for the acquisition of necessary rights of way the sum of $31,000; that Greenup County would assume liability for all property damage claims by owners of property outside the city, resultant from the construction of the overhead crossing and the closing of the grade crossings, or on account of the relocation or changes in grades of highways made in connection with the improvement; and that Greenup County would, by appropriate legal proceedings, cause the grade crossings to be vacated, closed and abandoned. The contract further provided that the City of Greenup would enact ordinances and take other necessary steps for the closing, vacating and abandonment of the grade crossings within its corporate limits. The city obligated itself to pay all property damage claims on the part of owners of property within the city limits. The execution of this contract by the county was duly authorized and directed by the Fiscal Court of Greenup County; and execution by the City of Greenup was duly authorized and directed by ordinance enacted by its Council.

Upon the failure and refusal of Greenup County to perform the obligations of its contract, the City of Greenup filed a bill in equity in the state circuit court praying declaratory judgment of its rights under the contract and for a mandatory injunction requiring the county to perform its obligations thereunder. It was adjudged that the contract was valid and binding on the parties; and both appellant, which had been joined as a party to the suit, and appellee were commanded to perform their respective specified obligations under the contract. The mandate of the state circuit court was obeyed by appellant and payment was made to the Department of Highways of Kentucky of the sum of $31,000 which was expended by Greenup County in acquiring the necessary rights of way, in changing the location of the highways, and in settling property damage claims. Appellant expended the further sum of $849.59 to make changes in its tracks, roadbed, and appliances necessitated by the construction of the overhead crossing. On February 5, 1940, the County of Greenup took appropriate legal action to close, vacate and abandon the three grade crossings by petition addressed to its county court. That court entered judgment ordering that the grade crossings be abandoned, vacated and closed. The judgment recited that, after the construction and opening to travel of the overhead crossing, the existing grade crossings would no longer be necessary for the accommodation of the public and that, inasmuch as they were hazardous and dangerous, it was deemed to the interest of the public safety and convenience that the grade crossings be closed and abandoned. On appeal to the circuit court, this judgment was affirmed.

The obvious purpose of the contract between the city, the county and the railroad company was to eliminate the three grade crossings, so as to decrease the hazard of public travel by the construction of a single overhead crossing. The answer of appellant asserts that the crossing now proposed to be opened and constructed over its line of railroad is located only 365 feet west of the former location of the White Oak Crossing and that the purpose of this proceeding is to substitute the new crossing for the old White Oak Crossing. The effect of this action is stated to be in violation of both the contract and the judgment of the state circuit court directing the closing of the White Oak Crossing. The answer avers further that the establishment of the crossing described in the petition would result in the creation of a hazard to the traveling public and to the railroad company, and would seriously interfere with the safe, proper and economical operation of its railroad line; that the crossing proposed to be established by this proceeding would serve the same territory as that formerly served by the White Oak, Collins Lane and Argillite Road crossings, and would be used by the traffic which formerly passed over them; that the proposed establishment of the highway and crossing described in the petition is a "subterfuge, fraudulently undertaken" by Greenup County to avoid its contractual obligations and the judgment of the state circuit court; and that the opening of the proposed new crossing would be "a violation and breach of the letter and spirit" of the agreement of June 7, 1939, between the county, the city, and appellant, and would violate and impair the judgment of the state circuit court.

The answer pleads that the County of Greenup is, for the foregoing reasons, estopped from maintaining this proceeding or from causing the highway and crossing described in the petition to be opened and established. The answer concludes...

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