Golden v. L. and N.R. Co.

• Decision Date: 19 February 1929
• Citation: 228 Ky. 134
• Parties: Golden v. Louisville & Nashville Railroad Company.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 134

Golden v. Louisville & Nashville Railroad Company.

Court of Appeals of Kentucky.

Decided February 19, 1929.

1. Railroads. — Railroad track, obstructing public road on which plaintiff's land was located, was permanent structure, for which plaintiff could recover only depreciation in value of property, if any, caused by permanent obstruction.

2. Action. — Where injury to land is permanent and damage resulting is fixed and consists of depreciation in value of property, recovery must be had once for all.

3. Damages. — Where evidence is conflicting as to whether injury to land from obstruction of road on which land is located is temporary or premanent, question should be submitted to jury under appropriate instructions.

4. Railroads. — In action for damages caused by obstruction of public road on which plaintiff's land was located by construction of railroad track, evidence that plaintiff had another road equally accessible and convenient held admissible.

5. Railroads. — In action for damages caused by obstruction of public road on which plaintiff's land was located by construction of railroad track, evidence that remainder of road was not in passable condition held admissible.

6. Railroads. — In action for damages resulting from obstruction of public road on which plaintiff's land was located, through construction of railroad track, evidence respecting profits to be made from operation of coal mines similar to that of plaintiff held admissible.

7. Highways. — While existence of another road is no defense for wrongful obstruction of an independent way, it is element to be considered in ascertaining amount of damages to land resulting from closing of one of roads.

8. Highways. — In action for damages for obstruction of road leading from plaintiff's land, instruction to find for defendant if plaintiff

had another road equally, accessible, suitable, and convenient for use by him in moving commodities to market, held erroneous.

Appeal from Knox Circuit Court.

B.B. GOLDEN and J.S. GOLDEN for appellant.

WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and BLACK, OWENS & BLACK for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

This is an action to recover damages for injury to real property. The Louisville & Nashville Railroad Company double-tracked its railroad in Knox county. The new or second track in the region involved in this controversy was built about 1,400 feet from the old track and crossed a public road known as the California branch road, which connects with the state highway at a point between Corbin and Barbourville. Steve E. Golden owns a farm some distance from the railroad, but located on the branch road. This action was instituted by Golden against the railroad company alleging that it had built a large fill across the road, the approaches to which were quite steep, and that it could not be used for hauling the products of his farm and mine to market. The plaintiff's petition, as finally formulated, claimed general damages for a depreciation in the vendible value of his farm directly resulting from the obstruction of the road, and special damages for loss of profits on crops and coal, which he was unable to market. The circuit court construed the pleadings as confining the plaintiff to damages for a reduction of the vendible value of his farm, if any, and declined to submit to the jury any issue as to special damages. The jury returned a verdict for the defendant. On this appeal by plaintiff it is insisted that the court committed reversible error in the admission and limitation of evidence, and in the instructions to the jury.

The evidence admitted over plaintiff's objection consisted of testimony to the effect that there was another road equally as good and fully as convenient for plaintiff's use. The court also admitted evidence to the effect that the obstructed road was just as bad or worse in other places as at the crossing. Evidence was also admitted to the effect that coal mines similar to that of plaintiff could not be operated at a profit under the demoralized condition of the coal market. If the circuit court was correct in its conception of the pleadings, the ruling upon the evidence in question was justified. If the plaintiff had another road equally accessible and convenient, there was no reason why he should not use it to market his crops and coal. Because one of his outlets had been obstructed, plaintiff was not at liberty to permit his crops to perish or his mines to lie idle at the expense of appellant. Louisville & N.R. Co. v. Cooper, 164 Ky. 494, 175 S.W. 1034, L.R.A. 1915E, 336. By a parity of reasoning, it was equally competent to prove that, even though the crossing had been in perfect condition, plaintiff was not hurt because the remainder of the road was not in passable condition. It would benefit plaintiff nothing to cross the railroad if he could not then get to market. The evidence did not justify the wrong of defendant, but it tended to show that it was not the proximate cause of the special injury. Likewise the evidence respecting the profits to be made from the operation of coal mines similar to that of plaintiff was admissible. If the plaintiff should be entitled to recover damages for failure to operate his coal mines, it is certainly competent for defendant to prove that no profits could be made at such mines.

But we are convinced from an examination of the record that the essence of plaintiff's cause of action was the direct damage to his farm. The railroad structure was permanent, and, according to the evidence, the crossing was completed and the roadway across the track was surfaced. It must be regarded, under the evidence,...