Beatty v. Louisville & N.R. Co.

• Citation: 176 Ky. 100,195 S.W. 487
• Parties: BEATTY v. LOUISVILLE & N. R. CO.
• Decision Date: 05 June 1917
• Court: Court of Appeals of Kentucky

195 S.W. 487

176 Ky. 100

BEATTY v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

June 5, 1917

Appeal from Circuit Court, Lee County.

Action by F. W. Beatty against the Louisville & Nashville Railroad Company. Petition dismissed, and plaintiff appeals. Affirmed.

J. K Roberts and J. M. McDaniel, both of Beattyville, for appellant.

Edw. S Jouett and Benjamin D. Warfield, both of Louisville, Samuel M. Wilson, of Lexington, Jas. J. Donohue, of Louisville, and G. W. Gourley and Sam Hurst, both of Beattyville, for appellee.

THOMAS J.

In 1890, a Kentucky corporation called Kentucky Union Railway constructed a line of railroad through Lee county, Ky. a portion of which ran along the northern bank of the Middle fork of the Kentucky river, and with the meanders of that stream. About that time there was established on the part of the road mentioned a depot at a station called St. Helens. Some time after that, the railroad was acquired by another corporation known as the Lexington & Eastern Railway, and later by the Louisville & Nashville Railroad Company, which latter corporation owned it on July 4, 1914. In 1903, the appellant (plaintiff) purchased a lot about 150 feet from the depot at St. Helens upon which he erected a storehouse at a cost of about $2,500, and immediately began in it a mercantile business which he has continued to operate from that time. For the purposes of shortening the distance and decreasing the cost of maintenance, the appellee and defendant, Louisville & Nashville Railroad Company, prior to July 4, 1914, constructed its road in that vicinity along the south bank of that part of Kentucky river, thereby shortening the distance and avoiding curves in its track occasioned by following the meanders of the stream. On the day mentioned it abandoned the use of the depot at St. Helens, as well as the track for some miles both east and west of it, and began the use of its newly constructed track, locating the new depot a short distance south of the old station of St. Helens, which place it called New St. Helens. This suit was filed on the 20th day of January, 1915, by which the plaintiff seeks to recover damages of the defendant in the sum of $5,000, which he claims to have sustained because of the removal of the depot and the abandonment of the station at St. Helens. He plants his alleged right of recovery upon the ground that there was an implied contract between himself and the defendant that the latter would forever maintain its railroad station and depot at St. Helens, or, if it should remove them, either with or without statutory authority, that it would respond to him in damages for such removal. A demurrer filed to the petition was sustained, and, the plaintiff declining to plead further, his petition was dismissed, and, to reverse the judgment which followed, he prosecutes this appeal.

There exists no express contract, written or oral, obligating in any way the railroad company to maintain either its track, depot, or station at the place complained of for the use or benefit of the plaintiff. There are no allegations to this effect, and it is expressly conceded that none existed, so we are confronted with the single proposition whether a property owner contiguous or adjacent to a public or quasi public highway holds contractual obligations from the owner or operator of the highway that it or any of its facilities provided for public use shall remain, after being once located, permanently at that place. Clearly, if such obligations exist, no authority from the state, howsoever much the public necessity demanded it, could authorize a removal free from resulting damages; for, whatever may be the law, where such contractual obligations exist upon the right of the property owner to compel the continued operation of the railroad at that point, if public necessities require its removal there can be no doubt that the property owner would have his cause of action for damages if he held such obligations preventing the removal. So we again repeat that the question here is whether such implied obligations arise from facts similar to those we have here.

Before we enter into a discussion of the main question, it is well enough to make reference to sections 767, 768, and 772 of the Kentucky Statutes. By the terms of the first section mentioned, a railroad company may, after its road is located, change it; but before doing so it must file a map showing such change and record same in the county court clerk's office of the county in which the change is made.

By the terms of the second section referred to, it is provided that:

The company may, "for the purpose of avoiding annoyance to public travel or dangerous or difficult grades or curves, or unsafe or insecure grounds or foundations, or for other reasonable cause, change the location or grade of any portion of its road; but shall not, except as otherwise provided, depart from the general route prescribed in the articles of incorporation."

By the terms of the last section mentioned, it is provided that:

"Any company that has established and maintained throughout the year, for five consecutive years, a passenger station at a point on its road, shall not abandon such station without the written consent of the Railroad Commission."

It is not alleged in the petition that any of the requirements of the sections of the statute referred to were complied with, and technically that fact is not presented in the record; but in the brief for counsel for appellant it is stated:

"It is here conceded that appellee had permission to remove its tracks, station, etc., from St. Helens and that vicinity, and this permission was obtained upon its own motion; therefore it cannot free itself from the resulting damage done to the appellant, as the Railroad Commission acts merely on the recommendation of the railroad company."

In other parts of the brief, the fact is admitted in language equally as strong, if not stronger, than that which we have quoted. Counsel for appellee also stated the fact as represented by their antagonist.

By the demurrer we are called upon to try the case upon admitted facts, and we are unable to see how the admission of such facts can be any greater under a demurrer than if the admission is expressly made, and we have therefore concluded to treat the case as if the fact of defendant having complied with the terms of the statute in removing its station and depot was expressly stated in the pleading whose allegations are admitted by the demurrer. To do otherwise would require us to endeavor to draw a distinction between admitted facts because of the way and manner in which the admission is made, and it would furthermore be asking the court to do a vain thing by shutting its eyes to the existence of a revelant as well as a conceded fact which could be manifested by pleading upon a return of the case and would be decisive thereof after such return. Besides, much learned and respectable authority exists to the effect that at common law a carrier might change the location of its stations and the facilities therewith connected without being responsible in damages to contiguous property owners. In such cases, if that right should be curtailed or regulated by statute, one complaining of a failure to comply with the statute would be called upon, under elementary rules of pleading, to show by his pleading that fact. However, for the purposes of this case, we will not attempt to pass upon the question as to the rights of a common carrier to make such removals under the common law. In discussing the question presented, we shall refer to cases dealing therewith from the standpoint of the right at common law of the carrier to make such removals, and those considering the question under statutory regulations; for clearly it can make no difference, so far as the plaintiff is concerned whether the right of the carrier to make the removal complained of is obtained from the common law or under our statute as embodied in the sections, supra, as his complaint is grounded only upon the fact of removal, and not the authority for it.

The general rule, both at common law and as modified by statute, with respect to the right of a railroad company to change the location of its stations or depots, is thus stated in 33 Cyc. 143:

"The right to change the location of a station in a particular case cannot be controlled or prevented by contract, or by the fact that private citizens in the expectation of the continuance of a station at a particular place have made donation of land or money to the railroad company, or purchased property or established business enterprises in the vicinity of the original location. In some cases the statutes prohibit the abandonment of a station without the consent of the railroad commissioners, or the consent of the Legislature; but statutory provisions prohibiting the abandonment of a station without legislative authority and permitting a change of location with the permission of the railroad commissioners and the municipal authorities of the place where the station is located are not necessarily conflicting, and it is not an abandonment of a station to change its location from one point to another in the same vicinity."

The part of the above excerpt peculiarly applicable to the present case is that which says, "or purchased property or established business enterprises in the vicinity of the original location."

A similar question was before the United States Circuit Court of Appeals for the Sixth Circuit in the case of Jones v N. N. & M. V. R. Co., 65 F. 736, 13 C.C.A. 96, the opinion in which was rendered by Judge Taft. In that opinion the court refers to the cases of Northern Pacific Ry. Co. v. Washington Territory, 142 U.S. 492, ...