Fitzhugh v. Louisville & N.R. Co.

• Decision Date: 22 June 1945
• Parties: FITZHUGH et al. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

189 S.W.2d 592

300 Ky. 509

FITZHUGH et al. v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

June 22, 1945

Rehearing Denied Oct. 19, 1945.

Appeal from Circuit Court, Logan County; E. J. Felts, Judge.

Action by Thomas E. Fitzhugh and others against the Louisville &amp Nashville Railroad Company to recover damages for injury to plaintiff's land and crops by casting of water through a railroad culvert upon it, and for mandatory injunction for the removal or closing of the culvert, wherein defendant filed demurrers. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Robert B. Hardison, of Louisville, for appellants.

H. T Lively, of Louisville, G. Sam Milam, of Russellville, and J P. Hamilton, of Louisville, for appellee.

STANLEY Commissioner.

This is an action for damages for injury to plaintiff's land and crops by the casting of water through a railroad culvert upon it, and for a mandatory injunction for the removal or closing of the culvert. By agreement the case was heard in its entirety by the judge. He rendered judgment for the defendants, and the plaintiffs appeal.

The railroad was constructed about the year 1882, running north and south through the lands of plaintiff's father, from whom they inherited it when he died in 1932. It appears that a depot was erected nearby about 1901, and a side track on a fill was extended about 1922. At this time the culvert about which complaint is made was put through the widened fill. The maps and sketches used and filed by the witnesses are not in the record before us. Their absence makes it impossible to understand much of the testimony. But it is quite apparent that the evidence sustains the description given by the judge in an opinion forming the basis of the judgment. The natural drainage of the area is in a westerly direction and it would seem that before the railroad was constructed, and were it not there now, the water would spread out on and over the lands of the plaintiffs on the west side of the track before reaching a shallow creek or dry run about like it does now. There are three ravines east of the track and, as we understand the evidence, the culvert channels the water from one of them under the railroad. Other culverts take care of the other drainage. The court based his conclusion upon the natural condition and the fact, as he found it to be, that all drainage through this culvert from east of the railroad is less than one-fourth of one per centum of the water entering upon the bottom lands where it is dissipated. We gather from the evidence that the collection of water through the culvert as an artificial channel was so negligible that its concentration did not materially change the natural condition or cause any damage. The injunction was denied because the culvert was found to be a permanent structure, properly installed.

Many points of law are argued by the appellants. Among them are that the defenses constituted negative pregnants, hence the pleadings are bad, and that the judge based his conclusion upon his personal view of the premises.

The defense interposed are several: General and special demurrers, motions, denials, admissions and affirmative pleas of limitation and prescription. But we cannot agree with counsel that the answer 'has most of the faults, flaws and vices that a pleading ought not to have'; or that it is 'evasive, prolix, indefinite, duplicitous, self-contradictory and not perspicuous'; or that it is so full of negative pregnants as to indicate quintuplets. Under our practice, there is nothing legally inconsistent in making several affirmative defenses, admissions and denials without pleading them in the alternative, even though they appear inconsistent from the literary standpoint. It seems to us the pleadings were skilfully and properly drawn.

The criticism of the judge viewing the premises comes too late, for the record shows the parties agreed that he should try the case without a jury and should personally view the situation, and that he was accompanied by the attorneys for both sides when he did so. Of course, it would not be proper without a definite agreement to that effect for a judge to base his finding alone upon what he saw and to ignore the testimony of the witnesses, but inspection of the premises by the court is permissible to enable him to understand and apply the evidence. 53 Am.Jur.Trial, § 1128; 64 C.J. 1202; Owings v. Talbott, 262 Ky. 550, 90 S.W.2d 723. Presumably in a case like this there is perfect accord between the true testimony and the actual condition seen by the court.

In the Owings case, which involved the issue of divisibility of lands, where the court without notice or knowledge of the parties had viewed the property, we considered the evidence in the case without knowing the extent of the judge's view. In Gray v. Gray, 197 Ky. 777 248 S.W. 172, we approved the procedure which was exactly like in the instant case, the judge having read the evidence, then viewed the property upon the request of the parties and...