Elizabethtown, Lexington & Big Sandy Railroad Company v. Combs

• Decision Date: 05 November 1874
• Citation: 73 Ky. 382
• Parties: Elizabethtown, Lexington & Big Sandy Railroad Company v. Combs.
• Court: Kentucky Court of Appeals

73 Ky. 382

Elizabethtown, Lexington & Big Sandy Railroad Company v. Combs.

Court of Appeals of Kentucky.

November 5, 1874.

APPEAL FROM FAYETTE CIRCUIT COURT.

BRECKINRIDGE & BUCKNER, For Appellant.

LESLIE COMBS, D. J. FALCONER, For Appellee.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

The appellee being the owner of a lot of ground in the city of Lexington, extending from Main Street back to the center of a small creek called "Town Fork," granted a part of his lot next to the creek to the city, and the mayor and council proceeded, pursuant to the grant, to lay out and construct thereon a street called Water Street, which has been kept open and used as a common highway of said city since about the year 1833.

Continuing to own and occupy the ground between Main and Water streets, the appellee in 1868 erected four double tenement-houses, fronting on Water Street and extending nearly to the line of the street, which he rented for between eight and nine hundred dollars per annum.

In 1869 the General Assembly passed an act incorporating the Elizabethtown, Lexington & Big Sandy Railroad Company, with authority to construct a railroad from Elizabethtown through Lexington to a point on the Big Sandy River near its mouth; and in December, 1871, the mayor and council of Lexington granted to the railroad company the right to construct its road over Water Street in front of the tenement-houses of appellee. The road having been built and put in operation, this action was brought by appellee to recover damages for injury thereby done to his property.

Assuming that he was still the owner of the ground occupied by the street to the extent of his abutting lot, subject only to the use of the street for ordinary purposes, appellee alleged that appellant had unlawfully and without his consent entered upon his land and constructed its road over it, without making any compensation therefor; that by the construction and operation of the road the street, which was the only way of ingress to and egress from his lot and houses, had been entirely or nearly entirely obstructed, so as to prevent him and his tenants from having the proper use and enjoyment of the street. He also alleged that the value of his lot and houses had been greatly depreciated by the obstruction of the street, by the close proximity of the road, and by the noise, soot, smoke, and blowing of whistles and steam by passing locomotives and trains, and by the danger of fire being communicated therefrom to his houses.

The appellant admitted that it had constructed and was operating its road along the street, and claimed the right to do so under its charter and the grant from the city; and alleging that it had used all proper care and skill in constructing and operating its road to avoid injury to the adjacent property, denied its liability for any damage resulting from the use of the street or the proximity of its road to property along the line. It also put in issue the appellee's title to the street and adjacent lot and houses.

There was evidence at the trial tending to establish the following material facts: that a stone wall had been erected along the margin of "Town Fork," and that the street lies between that wall and the line of appellee's lot, and is about twenty-three feet six inches wide; that the railroad is constructed so that the inner rail next to the lot is only five feet nine inches from his line, and that when a train is passing there is only three feet seven inches between the sides of the cars and the line, and that it is about fifteen feet from the inner rail to the walls of the houses, which would leave twelve feet ten inches between the walls of the houses and the walls of the cars of a passing train. These measurements of distances from the track and passing cars to appellee's line are based on the assumption that his line extends to the outer edge of the sidewalk, which is six feet wide; so that if his line does not extend further than the inner edge of the sidewalk, the distance from the rail to his line is eleven feet nine inches, and from the walls of passing cars to the line is nine feet seven inches. The width of the railroad track is not shown, but if it be assumed to be four feet eight inches, as stated in argument, the cars being nine feet wide, as the evidence shows, it is only ten feet eleven inches from the outside walls of passing cars to the stone wall next to the creek.

There is a street on the opposite side of "Town Fork" running parallel with it, and which may be reached from Water Street by means of alleys running perpendicularly to Water Street on each side of appellee's lot, and on each of which there is a bridge over the creek. These alleys enable appellee to get along either side of his lot, which is about one hundred and forty feet wide; and besides these and Water Street he has no way by which he can reach that part of his lots on which the tenement-houses stand.

The track superstructure is sunk to the level of the street, except the iron rails, which rise three or four inches above the surface. Wheeled vehicles drawn by horses can not pass or stand in Water Street at any point in front of appellee's lot when a train is passing, but may conveniently pass at all other times by running the wheels on one side between the rails of the railroad track. The top of the smoke-stack of a passing locomotive is about on a level with the second-story windows, and smoke and fire from the engine are sometimes blown against the houses and in at the windows, and such is the apprehended danger from fire that responsible companies refuse to insure the houses.

The evidence was conflicting as to whether the vendible or rental value of the property had been depreciated by the construction and use of the road. The construction and use of the road have been skillful and careful, and no unnecessary injury has been done, and no injury of any kind was shown, except such as results from the nature of the use made of the street and the proximity of the road to the sidewalk and to the property of the appellee.

Verdict and judgment having been rendered for appellee and appellant's motion for a new trial having been overruled, the case has been brought here for revision.

Several preliminary questions relied on for a reversal will first be disposed of.

Appellee was allowed, against the objections of appellant, to prove the value of his property before and since the building of the road. This should not have been allowed. Other causes besides the building and use of the road may have contributed to depreciate the value of the property. The question should have been so shaped as to elicit an answer as to the depreciation, if any, caused by the road.

Appellee was permitted in his own testimony before the jury to state the intention with which he dedicated that part of Water Street to the city. It does not matter what his secret intentions were. The legal effect of the act must be determined by the terms of the dedication, and not by the intention of the dedicator in making it.

At the conclusion of the appellee's evidence the appellant moved the court to direct the jury to find as in case of a non-suit, but the court overruled the motion. The only ground for such a motion, aside from the question whether the injury complained of was not damnum absque injuria, was the testimony of the appellee himself that he had made four separate mortgages of the property to persons not parties to the action. The mortgages were not read, and their dates do not appear in the record, and the motion, so far as it was based on the effect of this evidence, was properly overruled.

The main question in the case arises out of the refusal of the court to give the following instruction asked by the appellant, viz.: "Mere inconvenience of egress and ingress is not such an obstruction as the jury can give damages for, and if they believe the defendant's road-bed is on a grade level with the...