Chesapeake & O. Ry. Co. v. Eastham

• Decision Date: 12 May 1933
• Parties: CHESAPEAKE & O. RY. CO. v. EASTHAM.
• Court: Kentucky Court of Appeals

60 S.W.2d 361

249 Ky. 136

CHESAPEAKE & O. RY. CO. v. EASTHAM.

Court of Appeals of Kentucky

May 12, 1933

Appeal from Circuit Court, Boyd County.

Suit by Lillian Eastham against the Chesapeake & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Browning & Davis, of Ashland, for appellant.

Waugh &amp Howerton, of Ashland, for appellee.

PERRY Justice.

As stated in appellant's brief, this is an appeal from a judgment for $875 in favor of appellee, Lillian Eastham rendered in an action instituted by her to recover for alleged damage to certain real estate owned by her, situated on Panola street in Catlettsburg, Ky.

The basis of appellee's complaint is the destruction by the appellant railway company of a considerable part of Panola street, with the result that the ingress to and egress from appellee's property was destroyed, thereby directly and materially depreciating its market value.

The material facts of the case, it appears, are not in dispute and, briefly stated, are as follows: The appellee is the owner of a lot of ground fronting on Louisa street, Catlettsburg, Ky. and extending back to Panola street. On this lot there are five buildings, appellee's residence, which fronts on Louisa street, a frame cottage near the middle of the lot, and three frame cottages on the rear of the lot, facing on Panola street. The appellee also owns a small lot on the opposite side of Panola street, on which is constructed a small cottage.

These four houses fronting on Panola street are rented to colored families.

Still following this statement of facts as presented in appellant's brief, it further appears that prior to the year 1929, Panola street extended in a southerly direction from the business section of Catlettsburg to what is known as 30th street, where it crossed the railway tracks of the appellant. From this point, continuing southeastwardly, it wound up and along the face of the rather steep river hills, coming to an end just south of appellee's property and it was thus, even before the complained of destruction of Panola, a mere cul de sac, as it was open only at its north end, and appellee's only means of ingress and egress for the tenants of her Panola street cottages, situated at its southern terminal, was over the north end of the street. Since the destruction, or closing up, of Panola street at a nearby point north of appellee's property, by appellant, as hereinafter stated, or from 30th street southwardly for a distance of several hundred feet in the direction of appellee's lot, she has had no outlet whatever from her cottages on Panola street, either northwardly or southwardly, except over and by a narrow, rough side alley, some 10 or 12 feet wide, called "Rocky Alley," which, it appears, is both unsatisfactory and inadequate for meeting this section's need and general use as a street.

Further, it is shown by the evidence, that the now closed Panola street was a public street for thirty or forty years, was some 40 feet wide, and led from the main business part of the town southerly up over the rail-road tracks, near 30th street, and then through a negro settlement on the hill to appellee's property shortly beyond, near where it closes. This street was not paved, but had been made, by a covering of rocks and cinders, a usable street for all kinds of traffic and served as the only short and direct outlet for the tenants of appellee's property on Panola street to the business section of Catlettsburg. It is undisputed that this way in and out from her property was lost by the later improvements constructed by appellant along this street and that its construction work thereon caused and resulted in its permanent destruction as a passway.

As further stated by appellant, it made extensive changes in the year 1929 in its line of railway through the city of Catlettsburg and that "such work had for its primary objects the elimination of several grade crossings in the city, the construction of an additional track, and the elevation of the grade of existing tracks." The nature, locality, and extent of these improvements are fully set out in the opinion of this court in York v. Chesapeake & Ohio Railway Co., 240 Ky. 114, 41 S.W.2d 668, 669. Reference to that case is here made for a full and clear statement of the character, extent, and reasons underlying the making of these extensive improvements in the city of Catlettsburg and for a statement of the circumstances and considerations influencing the city's passing of the ordinances authorizing the appellant, upon the terms therein stated, to make them. However, by some inadvertence, we suppose, no copy of this ordinance is furnished by the record to advise us of its express terms and conditions.

The transactions had between the city and the railway company, leading up to the city's passing these ordinances and the company's extensive improvements of its railway system in the city, as thereunder made and authorized, are, in part, referred to in the course of the court's opinion in the York Case, supra, as follows:

"The railway company was hampered in the prompt dispatch through the city of its trains because of unnecessary curves and grades and lack of requisite trackage.

For the purpose of remedying these conditions, costly and inconvenient both to the public and itself, the railway company in the early part of 1929 submitted a plan to the city by which it proposed to acquire additional rights of way sufficient for the construction of four tracks and for the elimination of curves and grades, provided various grade crossings should be closed in return for the construction by the railway company of certain undergrade crossings. Numerous public meetings were held at which the plan was discussed and objections by the city officials and citizens were considered. The plan was modified and changed from time to time, ultimately resulting in the one approved in the ordinances above referred to. The ordinances, in substance, granted the railway company the right to maintain and operate a four-track line of railway through the city of Catlettsburg along the route designated by the company and provided that various grade crossings should be closed."

In return, the railway company was required to construct certain undergrade crossings and approximately 5,000 feet of new concrete streets and to make other improvements and changes. The principal street it was required to construct was a new concrete street immediately south of and parallel to its right of way and extending from 21st street on the west to Louisa street's undergrade crossing on the east.

It indisputably appears by the evidence that in the construction of this new street, the hillside on the south, or west side, was caused to slip or slide with the result that the part of Panola street in the area so affected, being a distance of about 1,000 feet, was destroyed. It is conceded by appellant that the destruction of this part of Panola street, of which complaint is made, was the result of appellant's construction of this new street, permanently destroying Panola street as a north passway thereover for the tenants of appellee's cottages abutting on Panola street. However, it is also conceded that the above described city ordinance authorized the appellant to make the changes and improvements mentioned, embracing its construction of this new street.

The appellee, claiming that this above described permanent destruction of Panola street was a wrongful and tortious appropriation and taking by appellant of Panola street, destroying her right of ingress to and egress from her property abutting thereon, instituted her action in the Boyd circuit court, therein seeking damages in the sum of $3,000 for the impairment of the market and rental value of her property situated thereon.

From a judgment in favor of appellee, plaintiff below, in the amount of $875, the appellant, defendant below, has prosecuted this appeal, relying upon the following grounds for reversal: (1) That no responsibility on the part of appellant for the alleged damage to appellee's property is shown, for which reason, it contends, the court erred in not directing a verdict for appellant; (2) that as to appellee, any damage resulting from the closing of Panola street is damnum absque injuria; and (3) that the verdict is grossly excessive.

Considering these objections in their order made, appellant first contends that the record shows that appellant was required by an ordinance of the city to construct the improvements upon Panola street, which resulted in the damage to and destruction thereof complained of and, further, there is no showing made that the appellant, by the terms of the ordinance or otherwise, assumed any responsibility for the resulting damage to abutting property owners or others. Appellant contends that, such being the situation, the only question here presented is, whether one who constructs a street under an ordinance or contract of a city is responsible for damages which resulted in the performance of such work, done in accordance with the terms of the ordinance, adding, however, that the existence of such liability upon the part of the city is, of course, obvious. Insisting upon this ground of its nonliability, as being under the ordinance an individual contractor with the city, it argues that it is equally obvious, that it as the individual contractor, who did the work under municipal authority, is not so liable in the absence of negligence or other improper conduct, citing in support of such ground of defense that it was to such effect decided by this court in the case of Pearson v. Zable, 78 Ky. 170, wherein recovery was denied to an abutting property owner who sought to hold the contractor...