Cranley v. Boyd County

• Decision Date: 15 December 1936
• Citation: 266 Ky. 569,99 S.W.2d 737
• Parties: CRANLEY v. BOYD COUNTY et al.
• Court: Kentucky Court of Appeals

99 S.W.2d 737

266 Ky. 569

CRANLEY v. BOYD COUNTY et al.

Court of Appeals of Kentucky

December 15, 1936

Appeal from Circuit Court, Boyd County.

Suit by Rhoda Cranley against Boyd County and the Chesapeake & Ohio Railway Company. Judgment for defendants, and plaintiff appeals.

Judgment as to the Chesapeake & Ohio Railway Company affirmed, and as to Boyd County reversed.

J.S Fullerton and S.S. Willis, both of Ashland, for appellant.

LeWright Browning and Thomas Burchett, both of Ashland, for appellees.

STANLEY Commissioner.

Formerly United States highway No. 23 ran out of Ashland as Winchester avenue on the north of, adjoining and parallel with, the tracks of the Chesapeake & Ohio Railway Company, until it reached the city limits, where it turned south at almost right angles and crossed the railroad tracks at grade. It then immediately turned and continued west on the south of the railway right of way. At this second turn there is a road coming into the main highway from the southeast from Westwood. The appellant, Rhoda Cranley, owns 2 1/2 acres of land at the junction. Her northern boundary line extends to the railway right of way hence embraces the highway; and her eastern line extends across and 40 or 50 feet beyond the Westwood road to the city limits of Ashland. Where the main highway first turns to cross the tracks, as above described a road comes into it from an industrial plant, where about 3,000 men are employed. For several years the appellant had conducted some kind of business on her premises (not disclosed in the record), and enjoyed considerable patronage.

In order to abolish this railroad grade crossing, and for other imperative reasons, the main highway was relocated within and beyond the limits of Ashland. It consists in part of a large viaduct. See City of Ashland v. Queen, 254 Ky. 329 71 S.W.(2d) 650. The new location west of the viaduct is south of and parallel with the railroad, and, after intersecting the Westwood road, runs by and through the south side of appellant's property. After the new road was completed, the county court of Boyd County in an ex parte proceeding ordered that the grade crossing above described be abandoned and closed, and the county road engineer was directed to close the same and prevent its further use for travel. There-upon effective barricades were erected by the county across the old highway on both sides of the railroad. The company then took up the paving on either side of and between its tracks. This resulted in cutting off the road north of the railroad and travel to and from the industrial plant from appellant's property. There had been a public crossing here for more than thirty years. The old highway south of the tracks and abutting the property is paved and remains open to the public for travel. The storehouse is also close to, but not upon, the new highway. A sketch better shows the situation.

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This suit was brought by the appellant against Boyd County and the Chesapeake & Ohio Railway Company to recover damages to her property by reason of the closing of the road where it crossed the tracks. The facts which the plaintiff could prove were stipulated. Among them are that she was not a party to the court proceeding in which the road was ordered closed; that she protested against its being obstructed and closed; and that the value of her property was depreciated 50 per cent., the difference immediately before and afterward being $5,000. The property was adaptable and suitable for the business conducted therein, and its access from the old route No. 23 over the crossing enabled the plaintiff and her tenants to conduct a profitable business there. Before the opening of the new road and the closing of the crossing, a great many people passed by the property and patronized the appellant. After the road was closed, the volume of traffic was diverted to the new road and the desirability of the property was practically destroyed. Another element entering into the damage is that jitney busses would bring passengers to the city limits to plaintiff's property on the old road and take on passengers there, which they do not do now.

The trial court peremptorily instructed the jury to return a verdict for the defendants. The appeal is prosecuted from the judgment rendered on that verdict.

There were two reasons assigned by the court for his ruling. One is that the damage suffered by the plaintiff by the closing of the road was general; that there was no actual taking or invasion of the plaintiff's property or interference with her ingress and egress, and the depreciation in value occasioned by the diversion of traffic was such as would be common to every one living on the road, and not special in its nature. The other ground is that the plaintiff had waived any claim for damages, or rather had received compensation therefor.

The directed verdict for the railway company was proper, as it did not close the road. It was done by the county road engineer at the instance of Boyd County alone. The railway company did not remove the paving until afterward.

Not as an exception to the rule of sovereign immunity of a county from liability for torts, but as a constitutional requirement, though a negation, is the rule that a county is legally answerable for trespass in the taking or injuring of a citizen's property. It arises from the absolute terms of section 13 of the Constitution of Kentucky, declaring that no man's property shall be taken or applied to a public use without his consent, and without just compensation being paid him, and of section 242, providing that those corporations or individuals invested with the privilege of taking private property for public use shall make just compensation for property "taken, injured or destroyed by them." The interpretation and application of these provisions, in relation to counties, since Layman v. Beeler, 113 Ky. 221, 67 S.W. 995, 24 Ky.Law Rep. 174 (as previously applied to cities), has been that they must respond and make compensation to the owner of property actually appropriated, or of property abutting upon roads and highways which has been injured or damaged in a manner regarded as a taking. Thus in City of Ashland v. Queen, supra, it was held that Boyd County was answerable in damages for injury to property resulting from the erection of a viaduct which is a part of the relocated highway involved in this suit.

This leads us to the proposition whether the closing of the road which formed the basis of the case at bar resulted in such injury to plaintiff's property as is embraced within the provisions of section 242 of the Constitution. Although the barrier across the road was 2 or 3 feet from the property line within the railroad right of way, it is a specious postulate to say appellant's property did not abut upon the closed segment.

The discontinuance of this crossing was for the public good (sections 4356f and 4356z-1 et seq., Kentucky Statutes), and the public good very frequently involves individual and sectional...