DeRossette v. Jefferson County
| Decision Date | 20 June 1941 |
| Citation | 288 Ky. 407 |
| Parties | DeRossette v. Jefferson County et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Eminent Domain. — A property owner may recover damages for obstruction of ingress or egress by the construction or alteration of a highway, provided the obstruction interferes with reasonable access to his property or the highway, and he may maintain an action independently of the remedy given the public at large for the damages resulting (Constitution, secs. 13, 242).
2. Appeal and Error. — Whether an obstruction of ingress or egress by the construction or alteration of a highway prevents reasonable access to particular property or to the highway entitling the property owner to recover damages is for the final determination of the Court of Appeals (Constitution, secs. 13, 242).
3. Eminent Domain. — A complaint alleging that the elimination of a grade crossing and the building of an underpass closed and obstructed an old road at the southwest corner of plaintiff's property and interfered with traffic moving south, that traffic was diverted to new highway, and that plaintiff, whose property was suitable for business and light industrial purposes, had lost his tenants, thus depreciating the value of his property, was insufficient to state a cause of action for damages for the "taking" of plaintiff's property in violation of the Constitution (Constitution, secs. 13, 242).
Appeal from Jefferson Circuit Court.
Carroll, McElwain & Ballantine and L.D. Deters for appellant.
Lawrence S. Grauman, Robert L. Sloss, Trabue, Doolan, Helm & Stites, Hubert Meredith, Attorney General, and A.E. Funk, Assistant Attorney General, for appellees.
Before Joseph J. Hancock, Judge.
Affirming.
Appellant in suit made appellees, Jefferson County, State Highway Department, its Commissioner, and the C. St. L. & N.O. Rwy. Co. defendants. Appeal is from judgment sustaining general demurrers of all defendants, and dismissing petition upon declination to plead further.
Appellant owned a tract of land near Louisville, on Highway No. 31 W, an old and heavily traveled highway, running southwardly from the city. Near St. Helens it intersected the railroad tracks at grade. The tract abutted the west side of the road for a distance of 536 feet, and was triangular in form, the vertex being at the crossing. As shown by map exhibited, there is a frame building on the wide end of the tract and near the crossing a shed and small building.
Appellant charged that in 1937 the defendants, acting under lawful powers, eliminated the grade crossing by building an underpass. Plans and specifications for the underpass, and relocation of the highway were prepared, approved by and agreed to by all defendants, and contract for constructing the underpass was entered into between the railway company and the department. Thereupon it became necessary, as provided by law, for the county to procure rights of way for the relocation of the highway. These were procured by agreement. There was no agreement or court proceeding as to appellant's tract, since no part of it was necessary to accommodate the proposed changes.
No change was made in the grade of the old road at the crossing with the new right of way; as a consequence the northern embankment of the underpass created the drop of 30 feet in the old road. Prior to the change, persons moving southwardly crossed the railroad tracks at grade; since the change traffic cannot move southwardly over the old location, because of the embankment.
Appellant claims that the change had the effect of closing and obstructing the old road at the southwest corner of his property, interfering with traffic moving south. That having been formerly situated on a much traveled highway, and his land suitable for business and light industrial purposes, and having a number of tenants who conducted profitable businesses (the character not shown), by the "construction of the underpass and obstruction of the old road, traffic has been diverted to the new highway, and he had lost his tenants," thus depreciating the value of his property.
The new road left the old road at a point nearly opposite the northeast line of the tract, and turned eastwardly into and along Manslick road, thence southwardly for 250 feet to a point where the Manslick road and the new road intersected Berry Boulevard. From that point the new road runs still southwardly for a distance of about 500 feet until it reached the underpass. Appellant contends that due to actions of defendants, his property has been injured and destroyed, without making compensation, measuring his damage at the difference between the market value before and after the relocation.
Appellant stands on the proposition that the closing of a public highway, abutting the property of an owner, is the taking of property within contemplation and meaning of Sections 13 and 242 of our Constitution, hence, under the facts stated, one or the other, or all the defendants should respond in damages. The statement, when applied to cases where certain facts exist, as a general proposition is true, as evidenced by many of our decisions dealing with the subject.
But, there are limitations as to what constitutes a taking or applying to public use (Constitution, Section 13) or taking, injuring or destroying private property, in applying it to public use (Constitution, Section 242). Expressions of the broad application, which we conceive to be contended for here, have crept in to some of our opinions, wherein there existed a genuine legal or constitutional ground for application of the principle that no person's property may be taken, injured or damaged without making just compensation, though generally relating to measure of values.
Analysis of the skillfully prepared petition shows no actual taking of any portion of appellant's property. Neither was there physical injury or damage to the property or any part thereof. There is no charge of depreciation in value because of deprivation of reasonably convenient ingress or egress. The petition and map manifest that there may be a slight inconvenience to appellant and tenants in journeying southwardly.
That one claiming damages for obstruction of ingress or egress by construction or alteration of a highway may recover, is beyond argument, provided the obstruction be such as will interfere with reasonable access to his property or the highway, and that a property owner who is specially affected by reason thereof may maintain an action independently of remedy on behalf of the public at large for damages resulting therefrom, is well settled, Illinois Cent. R. Co. v. Ward, 237 Ky. 478, 35 S. W. (2d) 863, but this court has the final say as to whether or not an obstruction is such as to prevent reasonable access. Louisville & N.R. Co. v. Johnson, 233 Ky. 628, 26 S.W. (2d) 535; Bondurant v. Paducah & I. Rwy. Co., 186 Ky. 794, 218 S.W. 257.
We need not discuss that phase of the law, since appellant has pitched his cause on the ground that by the relocation of the new highway, "traffic has been diverted to the Seventh Street road as newly located," and on this ground relies upon Illinois Cent. R. Co. v. Ward, supra; Cranley v. Boyd County, 266 Ky. 569, 99 S.W. (2d) 737, and Henderson v. City of Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A., N.S., 20. A casual reading of those cases might lead to the conclusion that they, in part, uphold appellant's cause. Unless differentiated they would have influence.
In the first case we reversed because the court erroneously sustained demurrer. It was shown that defendants had wrongfully and permanently obstructed a portion of a roadway that provided access to and from plaintiff's land, thereby destroying all means of ingress and egress to and from the property, compelling owners "to travel * * * in the opposite direction * * * whenever it was necessary to travel to the west, north, and south of their residence located on the farm," [237 Ky. 478, 35 S.W. (2d) 864] a typical case of an unreasonable obstruction.
One element justifying reversal was the fact that the county road, because of procedural irregularity, had been illegally closed. In that case we unqualifiedly followed the rule above stated, and went to some length in distinguishing, on technical grounds, Bradbury v. Walton, 94 Ky. 163, 167, 21 S.W. 869; Chenault v. Collins, 155 Ky. 312, 159 S.W. 834, and Beatty v. Louisville & N.R. Co., 176 Ky. 100, 195 S.W. 487, in which this court had theretofore said that abutting property owners in no event have property right in the continued maintenance of a public road, and in the Ward case suggested that what the writers of these opinions had said in this respect "were made arguendo and decided nothing respecting the obstruction of highways." However, as we construe it as distinguishing the instant case, the writer said:
"The cases here presented were predicated upon a wrongful obstruction of the public road, and did not proceed upon the theory that a road had been closed or changed by a proper proceeding for that purpose."
In this case it was asserted that every movement made by defendants was in accord with the law. It may be noted that this court in the Beatty v. Louisville & N. R. Co. case, supra [176 Ky. 100, 195 S.W. 491], cited the Chenault and Bradbury cases, supra, and in addition Cole & O'Harra v. Shannon, 1 J.J. Marsh. 218; Lexington & O.R. Co. v. Applegate, 8 Dana 289, 33 Am. Dec. 497, in supporting the principle that:
"* * * a private citizen has no vested right in the permanent continuance of a public highway for a discontinuation of which he might maintain an action either for damages or to enforce a perpetual maintenance of the highway."
A reading of Cranley v. Boyd County, supra,...
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