City of Newport v. Louisville & N.R. Co.

• Decision Date: 23 March 1917
• Citation: 174 Ky. 799,192 S.W. 838
• Parties: CITY OF NEWPORT v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

192 S.W. 838

174 Ky. 799

CITY OF NEWPORT v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 23, 1917

Appeal from Circuit Court, Campbell County.

Petition by City of Newport against the Louisville & Nashville Railroad Company, for a mandatory injunction, requiring defendant to abolish grade crossings and to comply with an ordinance therefor. From a dismissal of the petition, the City appeals. Affirmed.

Otto Wolff, Brent Spence, and L. J. Diskin, all of Newport, for appellant.

E. S Jouett and H. L. Stone, both of Louisville, and J. C. Wright of Newport, for appellee.

MILLER J.

On July 21, 1913, the board of commissioners of the city of Newport a city of the second class, adopted an ordinance requiring the appellee, the Louisville & Nashville Railroad Company, to take action in the manner therein specified, for the purpose of eliminating the grade crossings at Tenth, Eleventh, and Monmouth streets, in Newport. By the first section of the ordinance, the railroad company, at its own expense, was required: (1) To lower its tracks from Ninth street southwardly, by removing them westwardly about 30 feet from their present location, and so as to pass under the Chesapeake & Ohio Railroad tracks and connect with the present tracks of the Louisville & Nashville Railroad so as to eliminate the grade crossing at Tenth, Eleventh, and Monmouth streets and the crossing of the Chesapeake & Ohio Railroad; (2) to construct for said streets, over and above the company's tracks, substantial steel bridges, of design, material, and character to be approved by the board of commissioners; (3) to build, construct, and maintain such retaining walls and iron fences as may be necessary to protect the streets or private property from injury from excavations that may be made; (4) to repair, keep, and maintain said bridges which are required to be constructed by the railroad company under said ordinance; and (5) to remove its tracks from their present location to a new one for a distance of about one mile, thereby requiring the company to abandon its present line and right of way and to acquire a new right of way over private property and to replace its track therein. The railroad company having refused to comply with the ordinance, the city of Newport instituted this action on August 7, 1914, for a mandatory injunction requiring the defendant to abolish said grade crossings and comply with the ordinance. A similar ordinance, relating to the tracks of the Chesapeake & Ohio Railway Company in the same immediate neighborhood, was adopted at the same time, and that company was made a defendant to this action. The city filed a map in the case, showing specifically the extent and way in which it sought a change in the present location of the railroad tracks. Upon the argument it was stated, without contradiction, that the cost of complying with the ordinance would approximate $750,000. By an order made January 2, 1915, the plaintiff dismissed the action against the Chesapeake & Ohio Railway Company, without prejudice, and the case proceeded against the Louisville & Nashville Railroad Company as the only defendant. The circuit court sustained a demurrer to the petition; and, the plaintiff having declined to further plead, the petition was dismissed. The city appeals.

Many questions were raised, and we are not advised as to the ground upon which the circuit court rested its judgment.

The first question raised, however, in this court relates to the power of the city of Newport to pass the ordinance in question; the railroad company insisting that this power does not exist at common law, and that no statute has conferred it upon the plaintiff. On the other hand, the city insists that it has the authority to pass the ordinance in question under its general police power to eliminate or separate dangerous grade crossings, as well as by virtue of certain sections of the charter of cities of the second class, which will be hereafter enumerated. The record does not show whether the streets in question were extended over the right of way subsequently to or before the construction of the railroad; but, for the purposes of this opinion, we will take the case which is strongest against the plaintiff, and assume that the streets were extended over the right of way subsequently to the construction of the railroad.

While the authorities are not fully agreed upon the question, we think it is established by the great weight of authority that a state, in the exercise of its police power, or a municipality by the authority of the state, may compel a railroad company, without compensation, to construct and maintain suitable crossings at streets extended over the right of way subsequently to the construction of the railroad. It has been so decided by the courts of last resort in Maine, Connecticut, Illinois, New York, Tennessee, Indiana, Texas, Mississippi, Ohio, Nebraska, New Jersey, Vermont, Minnesota, Wisconsin, and by the Supreme Court of the United States. Boston & Maine R. R. Co. v. York County, 79 Me. 386, 10 A. 113, New York, etc., R. R. Co. v. Waterbury, 60 Conn. 1, 22 A. 439; Chicago & N.W. R. R. Co. v. Chicago, 140 Ill. 309, 29 N.E. 1109; People ex rel. Kimball v. Boston & A. R. R. Co., 70 N.Y. 569; Harriman v. Southern R. R. Co., 111 Tenn. 538, 82 S.W. 213; Lake Erie, etc., R. R. Co. v. Shelley, 163 Ind. 36, 71 N.E. 151; Wabash R. R. Co. v. Railroad Commissioners, 176 Ind. 428, 95 N.E. 673; Morris v. City of Indianapolis, 177 Ind. 369, 94 N.E. 705, Ann.Cas. 1915A, 65; Gulf, C. & S. F. R. R. Co. v. Milam County, 90 Tex. 355, 38 S.W. 747; I. C. R. R. Co. v. Copiah County, 81 Miss. 685, 33 So. 502; Lake Shore & M. S. R. Co. v. Sharpe, 38 Ohio St. 150; Thorpe v. Rutland & Bur. R. R. Co., 27 Vt. 141, 62 Am.Dec. 625; Missouri Pacific R. R. Co. v. Cass County, 76 Neb. 396, 107 N.W. 773; State v. Northern Pacific R. R. Co., 98 Minn. 429, 108 N.W. 269; Chicago, Milwaukee & St. Paul R. R. Co. v. Milwaukee, 97 Wis. 418, 72 N.W. 1118; N. Y., etc., R. R. Co. v. Bristol, 151 U.S. 556, 14 S.Ct. 437, 38 L.Ed. 269; Chicago, B. & Q. R. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; District of Columbia v. Brooke, 214 U.S. 138, 29 S.Ct. 560, 53 L.Ed. 941. The power has, we believe, been denied only by the states of Kansas, Louisiana, and Michigan. And this power includes the power to require a railroad company to conduct and keep in repair, at its own expense, a viaduct over its tracks along a street crossed thereby. Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N.W. 624, 41 L.R.A. 481, 53 Am.St.Rep. 557 (affirmed in 170 U.S. 57, 18 S.Ct. 513, 42 L.Ed. 948); Missouri P. R. Co. v. Omaha, 235 U.S. 121, 35 S.Ct. 82, 59 L.Ed. 157; Superior v. Roemer, 154 Wis. 345, 141 N.W. 250; State ex rel. St. Paul v. Chicago, M. & St. P. R. Co., 122 Minn. 280, 142 N.W. 312; Wabash R. R. Co. v. Railroad Commissioner, 176 Ind. 428, 95 N.E. 673. The extent of this power is thus stated in 8 Cyc. 871:

"The Legislature may take such police regulations of railroads as are necessary for the safety of the persons and property of the public; it may compel them to construct and maintain cattle guards, warning posts, crossing signs, crossing gates, planking of tracks, and kindred appliances; make all necessary and reasonable provisions for the maintenance, alteration, or removal of grade crossings; require railroads to fence their rights of way, and make them responsible for losses caused by neglect so to do; enact ordinances for the prevention of and protection from fires, as by the establishment of fire limits; and prescribe reasonable and bona fide building regulations."

Again, in 33 Cyc. 288, it is further said:

"The duty of maintaining and keeping in repair suitable crossings and of restoring highways crossed so as not to impair their usefulness is a continuing duty, and it frequently happens that a crossing or mode of restoration originally sufficient may become insufficient by reason of subsequent conditions, increased travel, character of vehicles used, and the like, in which case it is the duty of the railroad company to do whatever the public convenience and necessity may require in order to meet such conditions, and it may be compelled by appropriate proceedings to do so, or held liable in damages for resulting injuries. Changes within the application of the foregoing rules have been held to include the construction of a bridge or viaduct at a crossing formerly constructed at grade, with the necessary excavations, embankments, and approaches therefor, the widening of a crossing or its approaches to make it sufficient to accommodate the increased amount of travel or character of vehicles used, the widening of a bridge and its approaches, the widening of the space where the street or highway passes under a railroad, and the removal therefrom of pillars or abutments which reduce the width or obstruct the use of the highway, the alteration of a railroad bridge so as to prevent the discharge of water upon a street below, lowering the grade of a railroad constructed upon an embankment to the level of a street, or the changing of the grade of the railroad in order to conform to a change in the grade of a street."

And this power of the state...