Elizabethtown & Paducah Railroad Company v. Helm's Heirs

• Decision Date: 27 April 1871
• Court: Kentucky Court of Appeals
• Parties: Elizabethtown & Paducah Railroad Company v. Helm's heirs.

Page 681

71 Ky. 681

Elizabethtown & Paducah Railroad Company v. Helm's heirs.

Court of Appeals of Kentucky.

April 27, 1871.

APPEAL FROM HARDIN COUNTY COURT.

H. C. PINDELL, For Appellant.

C. G. WINTERSMITH, JAMES T. HELM, For Appellees.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

The inquiry in this case is, What compensation shall be made to the appellees for land taken for the use of the Elizabethtown & Paducah Railroad Company?

The rule prescribed by the General Assembly, and embodied in the 13th section of the original charter of said company, is as follows: "In estimating the damages (the jury) shall find for the owner or owners the actual value of the land . . . . proposed to be taken; but in estimating damages resulting incidentally to the other land . . . of such owners, shall offset the advantages to such residue to be derived from the building and operating of said road by, through, or near such residue."

This rule must of course be held to be subordinate to the constitutional protection afforded the citizen by the 14th section of the 13th article of our state constitution, which provides, in terms, that "no man's property shall be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him."

It has been uniformly held by this court that this provision of our organic law entitles the citizen to insist on being paid in money the value of the thing taken from him, although he may be incidentally benefited with others in the appropriation of it to public use. He has the right to demand the value of the land taken, considering its relation to the land from which it is severed. (Nashville & Henderson Railroad Company v. Dickerson, 17 B. Monroe, 173; Louisville & Nashville Railroad Company v. Thompson, 18 B. Monroe, 735; Elizabethtown & Paducah Railroad Company v. Kurtz, Ms. Opinion, 1871.) Of this right he can not be deprived by legislative enactment, and no intention to do so is manifested by the charter under which the appellant is proceeding. The right, however, of the citizen to indemnity for consequential inconvenience or injury resulting from the use to which the public proposes to devote the land taken is not a constitutional right, but one existing by virtue of the laws regulating the rights and remedies of the owners of property, and is a legitimate subject of legislative action.

This distinction is recognized and stated with great clearness and precision by Chief Justice Robertson in the case of Sutton's heirs v. The City of Louisville (5 Dana, 28), where this language is used: "The citizen has a right to insist on being paid the value of the thing taken from him, although he may be incidentally benefited with others in the appropriation of it to public use. If, however, claiming more than the value of the property taken, he seek indemnity for consequential inconvenience or injury, then the true question will be whether, upon a survey of all advantages as well as disadvantages which will be likely to result to him, the balance will be for or against him; and if...