Chesapeake & O. Ry. Co. v. May

• Decision Date: 05 March 1914
• Citation: 163 S.W. 1112,157 Ky. 708
• Parties: CHESAPEAKE & O. RY. CO. v. MAY.
• Court: Kentucky Court of Appeals

163 S.W. 1112

157 Ky. 708

CHESAPEAKE & O. RY. CO. v. MAY.

Court of Appeals of Kentucky.

March 5, 1914

Appeal from Circuit Court, Floyd County.

Action by Margaret May against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkins & Harkins, of Prestonsburg, Worthington, Cochran & Browning of Maysville, and F. T. D. Wallace, of Ashland, for appellant.

May &amp May, of Prestonsburg, for appellee.

CARROLL J.

In 1902 E. B. Auxier and his wife, in consideration of $2,685, sold and conveyed to the predecessor in title of the appellant company a right of way "on, over and through which to construct, maintain and operate a single or double track railway." The right of way thus conveyed was 100 feet in width. After this E. B. Auxier died, and his land adjoining the right of way conveyed was divided among his heirs; one tract being set apart to the appellee, Margaret May. The land allotted to Mrs. May was situated on both sides of the right of way, and a part of it was a steep hillside; the right of way being at the base of the hill. The railroad company desiring to build an additional track on its right of way found it necessary to obtain a supply of dirt for the purpose of making an embankment, and this dirt was obtained by making a long and deep excavation on its right of way adjacent to the boundary of land owned by Mrs. May. This excavation extended to the property line between the right of way and the lands of Mrs. May on the hillside, and as a result of the excavation, which removed the support from Mrs. May's land, a large quantity of her land, containing some valuable trees, was caused to slip from its natural position. To recover damages for the injuries sustained by the slipping of the ground, she brought this action against the company, and on a trial there was a verdict and judgment in her favor.

On this appeal the principal contention of the railroad company is that it had the right to remove, at such times and at such places as suited its convenience and interest, as much of the dirt on its right of way as it found necessary to the purposes for which the right of way was obtained; and it is argued that, as there is no evidence that the slipping of Mrs. May's land was caused by any negligence on its part in making the excavation or by any act not reasonably necessary in the prosecution of its business, an action did not lie against it in behalf of Mrs. May, although her estate may have been injured by the making of the excavation and the removal of the lateral support that the ground on the right of way, in its natural state or before the excavation was made, afforded to her adjacent land on the hillside.

It has been settled by this court in numerous cases that "the owner of land adjacent to the lands of another has no right to remove the earth and thus withdraw the natural support of his neighbor's soil; and if he does he is liable for damages and may be restrained by injunction." And this liability attaches without reference to whether the removal of the lateral support was accompanied by acts of negligence or not. Oneil v. Harkins, 8 Bush, 650; City of Covington v. Geyler, 93 Ky. 275, 19 S.W. 741, 14 Ky. Law Rep. 145; L. & N. R. R. v. Bonhayo, 94 Ky. 67, 21 S.W. 526, 14 Ky. Law Rep. 737; Foley v. Wyeth, 2 Allen (Mass.) 131, 79 Am. Dec. 771; Schultz v. Bower, 57 Minn. 493, 59 N.W. 631, 47 Am. St. Rep. 630. And, if this principle is applicable to the case we have, the decisions quoted, which are in harmony with the body of the law everywhere, would authorize the recovery in behalf of Mrs. May. It is said, however, that there is a well-defined distinction between the rights and liabilities of adjacent landowners in respect to lateral support and the rights and liabilities of a railroad company and an adjacent proprietor concerning the uses to which the right of way of the railroad company may be put, and that the doctrine of lateral support applicable to ordinary adjacent landowners does not obtain between a railroad company and an adjacent proprietor; that a railroad company may remove the lateral support afforded by its right of way without subjecting itself to any liability, although the removal may damage the adjoining owner.

In support of this proposition the case of Hortsman v. Cov & Lex. R. R. Co., 18 B. Mon. 218, is relied on. In that case it appears that Hortsman granted to the railway company a right of way for the railroad to pass through his land, and in preparing the right of way for the use intended it was necessary to make a deep cut in the ground. The making of this cut caused the adjacent land of Hortsman to slip, and he brought suit against the company to recover damages for the injury to his estate. The question of the liability of the company was presented by a demurrer to the petition of Hortsman, and, in holding that under the facts stated in the petition the company was not liable, the court said: "The petition shows that the plaintiff had parted with the right of way for the railroad, and it must be assumed that he contemplated and assented to such use of the way as would render it practicable for the purposes for which it was intended. It does not appear, from any allegation in the petition, that the railroad company used or appropriated the way to any purpose not contemplated by the parties, nor that the company, in using the way for the track, dug the ditch or trench deeper or wider than was necessary, or went outside of the width granted for the way. *** Now, although it devolved upon the company, in the use of the way for the purpose contemplated, to observe proper care and precaution so as to avoid unnecessary injury to plaintiff's property, and although a failure to do this would furnish a just ground of complaint for injury resulting from such failure, we are of opinion that it did not devolve upon the company to construct a wall or erect any defenses for the protection of the adjoining property from the consequences resulting from a proper and reasonable use of the way for the railroad, although such consequences would be injurious, and inevitably so, to the plaintiff. *** It is obvious, from the petition here, that the plaintiff knew to what use the way would be applied; the presumption is that he estimated the damage that would necessarily result from the use of the way for the railroad track. The complaint is, not that it was not used for that purpose, or for a different one, but that the company failed to protect him by walls or otherwise, from the falling in of his adjoining land. If the plaintiff desired to be protected from the injury, which he himself says was the inevitable result of the use of the way, without walls to prevent the caving in of the adjoining land, he should have stipulated for the erection of such walls. He parted with the right of way without such...