Bingham v. Lexington & E. Ry. Co.

• Decision Date: 20 June 1919
• Citation: 213 S.W. 204,185 Ky. 48
• Parties: BINGHAM ET UX. v. LEXINGTON & E. RY. CO.
• Court: Kentucky Court of Appeals

213 S.W. 204

185 Ky. 48

BINGHAM ET UX. v. LEXINGTON & E. RY. CO.

Court of Appeals of Kentucky.

June 20, 1919

Appeal from Circuit Court, Perry County.

Action by T. G. Bingham and wife against the Lexington & Eastern Railway Company. From judgment for defendant, plaintiffs appeal. Affirmed.

Faulkner & Faulkner and Williams & Grace, all of Hazard, and W. A Stanfill, of Hyden, for appellants.

Wooton & Morgan, of Hazard, and Benjamin D. Warfield, of Louisville for appellee.

QUIN J.

Appellants are the owners of several lots in the town of Hazard fronting on what is known as Main or Maple street, and extending back to the river. About the time they purchased these lots appellee constructed its roadbed opposite their property, and in so doing made a fill extending some 25 or 30 feet into the river, and it is alleged that in so constructing its roadbed it caused rocks and other substances to be thrown into the river on the south side thereof to such an extent as to change the current of the river, thus throwing the current against the north side of the bank, with the result that a large portion of appellant's land was washed away and the remaining portion damaged. At the conclusion of all the evidence the court sustained appellee's motion for a directed verdict.

The court gave two reasons for sustaining the above motion. The only one necessary for us to note is "that there was no way from the proof to determine whether the fill mentioned in the evidence caused the property to wash away." The court did not err in sustaining said motion. Counsel does not point out in either the original or reply brief, nor have we been able to find, any evidence showing that the property of appellants has suffered any damage by reason of the construction of the fill. From the evidence introduced by appellants it is shown that for a period of 30 or 40 years there has been a gradual washing or wasting away of the bank on the appellants' side of the river. Appellants admit that at the time they purchased the property, the banks of the river looked as if they had been gradually breaking off.

One witness states that it had been broken off "right smart" prior to appellants' acquisition of the land. Another testifies he had known the land for 25 years; he had tended corn there when a boy, and that the bank had been falling in as long as he could remember.

It is evident that the construction of the embankment did divert the current from the south to the north side of the river, but what effect, if any, this had upon the property of appellants the record does not show. It is admitted that even before the construction of the railroad the property was affected by high tides. For many years there has been a wearing away of appellants' land, and of the adjoining property bordering the river, but we have looked in vain for any evidence that the building of the railroad increased the waste. The nearest approach to any testimony of this kind is found in a question asked the witness Baker as to whether the falling in of the bank at the point mentioned had been greater since the current of the river had been diverted than it was before, and his answer is, "well, I can't say; I don't know whether it has or not."

Neither the appellants nor any of their witnesses offered any testimony on this point, and in this state of the record the lower court could not have done otherwise than it did. Under the evidence introduced the jury could do no more...