Gargan, &C., v. Louisville, New Albany & Chicago Railway Co.

• Decision Date: 17 October 1889
• Citation: 89 Ky. 212
• Parties: Gargan, &c., v. Louisville, New Albany & Chicago Railway Company.
• Court: Kentucky Court of Appeals

89 Ky. 212

Gargan, &c., v. Louisville, New Albany & Chicago Railway Company.

Court of Appeals of Kentucky.

October 17, 1889.

APPEAL FROM LOUISVILLE CHANCERY COURT.

DODD & GRUBBS FOR APPELLANTS.

CARY & SPINDLE AND J. P. GREGORY ON SAME SIDE.

PATRICK JOYES ON SAME SIDE.

H. S. BARKER AND E. F. TRABUE FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The charter of the city of Louisville provides "that said city may, at any time, institute suit in the Louisville Chancery Court for the purpose of closing up any of its streets or alleys dividing any of the squares or lots thereof, and to such suit all the owners of ground in the square or lot shall be made defendants, and if all such defendants are competent to act for themselves, and shall consent to the closing up prayed for, then the court shall render a decree accordingly; but without such consent said court shall hear the proof made by the parties, and, if satisfied that the closing up would be beneficial to said city and not injurious to any party not consenting, shall render a decree closing up such street or alley."

An ordinance of the city of Louisville, approved on the 5th of November, 1886, reads: "Be it ordained by the general council of the city of Louisville, That the city attorney be, and he is hereby, authorized and directed to enter the appearance of the city of Louisville to any proceeding that may be instituted in court to procure Columbia street to be closed from the west side of Fourteenth street to the west side of the grounds of the Louisville, New Albany and Chicago Railway Company, and to consent, on behalf of said city in said proceeding, to said portion of said street being closed."

In a few days after the passage of this ordinance the city of Louisville instituted the present action, alleging that the closing up of said street as indicated in the ordinance would prove beneficial to the city, and would work no injury to the property-holders thereon, reciting the ordinance by which the consent of the city is given, and asking the chancellor to inquire into the facts alleged, and, if true, that the street be closed, &c. The Louisville, New Albany and Chicago Railroad Company filed its answer and cross-petition against the present appellants, in which it unites with the city of Louisville in asking that Columbia street be closed, for the reason that it would prove beneficial to the corporation and result in no injury to the property-holders.

This is, in fact, a controversy between this corporation and the appellants, whose property borders on Columbia street, the attorney for the city consenting because he had been so directed by an ordinance of the city council. The real estate owned by these appellants, and upon which they live, lies between Fourteenth and Fifteenth streets, and Columbia street is between Rowan and Duncan streets.

There is much conflict in the testimony as to the injury sustained by these lot-owners in the event Columbia street should be closed at the point and in the manner directed by the ordinance. It is maintained by the railroad company, or by the city, that the mode of ingress and egress to and from this property is in nowise disturbed, and that such is the condition of Columbia street, where the obstruction complained of is said to exist, that travel in vehicles would be dangerous by reason of railroad tracks and the moving of cars that have already, in effect, for the purpose of travel, closed this street; still it appears that those living on Columbia street, and who wish to go east to the main or business part of the city, must first go west on Columbia to Fifteenth street, and then north or south to some other street, and thence east to the center of trade.

The Legislature, in giving this power to the city council, has been careful to guard the interest of those owning property on a street, and before it can be closed it must appear that it will be of benefit to the city, and not injurious to the owners of the property bordering on the street. While many of the witnesses say that the appellants ought not to complain because they are not injured, the fact exists that the ingress and egress to and from their homes to Fourteenth street is closed if this ordinance of the city is enforced, and as a result, when they wish to travel east on foot or in a vehicle, they must first go west, leaving Fourteenth street behind, and travel to Fifteenth street. That this works an inconvenience and injury to the lot-owners who had, in the first place, but the two modes of ingress and egress is too plain a proposition to be controverted; and besides, the fact of the injury is established upon testimony not in effect disputed as to the great inconvenience that must necessarily result to the owners of lots bordering on this street and lying between Fourteenth and Fifteenth streets. The case of Baily v. Culver, found in 12 Mo. App., 175, is the strongest case referred to by counsel for the appellees in support of the right of the city to close this street, either for its own...