Greenup County v. Chesapeake & O. Ry. Co.

• Decision Date: 16 May 1947
• Docket Number: No. 106.,106.
• Citation: 71 F. Supp. 652
• Parties: GREENUP COUNTY v. CHESAPEAKE & O. RY. CO.
• Court: U.S. District Court — Eastern District of Kentucky

71 F. Supp. 652

GREENUP COUNTY v. CHESAPEAKE & O. RY. CO.

No. 106.

District Court, E. D. Kentucky, Catlettsburg.

May 16, 1947.

J. R. Sowards, of Greenup, Ky., John W. McKenzie, of Ashland, Ky., and Thomas E. Nickell, of Greenup, Ky., for plaintiff.

LeWright Browning, of Ashland, Ky., for defendant.

SWINFORD, District Judge.

This case is here on removal from the County Court of Greenup County, Kentucky. It is a proceeding brought by Greenup County to condemn a right of way for a county road over the property and tracks of the defendant, the Chesapeake and Ohio Railway Company. The petition is in the usual form of such condemnation proceedings and is brought pursuant to Section 178.115 and related sections of Kentucky Revised Statutes. The defendant has filed its answer. The case is before the Court at this time to consider the plaintiff's motion to strike the second and third paragraphs of the answer.

Since the motion admits the truth of the allegations contained in these paragraphs of the answer, there is presented squarely the question of their sufficiency in law as a defense to the condemnation proceeding.

The second defense denies that the strip of land sought to be condemned is required by the county or is necessary for a public road or that a public county road or any road is required over the defendant's tracks at that location.

The third defense is best understood by direct quotations from the pleading itself. It is alleged that a "certain highway known and designated as U. S. Route No. 23 crosses the Ohio river from the State of Ohio into the State of Kentucky near the lower or western boundary of Greenup County, Kentucky, and then runs eastwardly parallel with the Ohio River through the County and City of Greenup to and through the City of Ashland in Boyd County, Kentucky; that said highway is and has been for many years one of the most traveled highways in the State of Kentucky and extends through thickly populated territory, including the Cities of Portsmouth, Ohio, and Greenup, Russell, Ashland, and Catlettsburg, Kentucky, and thence extending southwardly along and through the Big Sandy River valley to points in the south and southeastern parts of the United States; that at Greenup and Ashland, Kentucky, it connects with other highways extending to other sections of the state; that the said U. S. Route 23 is the only highway connecting the City of Greenup with the Cities of Russell and Ashland, and that prior to the times hereinafter set out said highway crossed at grade, the tracks and right of way of this defendant, which said crossing was known as the White Oak Crossing and was located approximately 3,600 feet east of the eastern corporate limits of the City of Greenup; that said grade crossing was especially dangerous to the traveling public by reason of its location, the heavy traffic upon and along said highway and the great number of trains operated over said crossing by this defendant; that there also connected with the said U. S. Route 23 a certain other highway which extended from said U. S. Route 23 through Greenup County into Carter County where it connected with U. S. Route 60 at or near the City of Grayson, Kentucky; that said latter described highway crossed the tracks and right of way of this defendant immediately east of the eastern corporate limits of the City of Greenup; which said crossing was known as the Argillite Road Crossing; that said grade crossing was especially dangerous to the traveling public for reason of its location, the heavy traffic upon and along said highway and the great number of trains operated over said crossing by this defendant; that there also connected with said U. S. Route 23 a roadway known as Collins Lane, which said latter described roadway crossed the tracks and right of way of this defendant at a point between the aforesaid Argillite Road Crossing and the aforesaid White Oak Crossing; that said grade crossing was especially dangerous to the traveling public by reason of its location, the heavy traffic upon and along said highway and the great number of trains operated over said crossing by this defendant.

"Defendant further states that in the year 1938 the Department of Highways of the Commonwealth of Kentucky set aside and allocated certain of the funds appropriated by the Federal Government for the purpose of the elimination of highway and railroad grade crossings under the United States Federal Aid Grade Crossing program as authorized under Section 8 of that certain act of the 74th Congress of the United States, being Public Act 686, approved June 16, 1936 49 Stat. 1521, for the elimination of the aforesaid grade crossings and thereafter the said Department of Highways and this defendant entered into a contract providing for the elimination of said grade crossings, and the construction, in lieu thereof, of an overhead crossing at a point approximately on the location of the above mentioned Argillite Road Crossing. * * *

"Defendant further states that under the State and Federal laws and regulations governing the program for the elimination of highway and railroad grade crossings the funds allocated, set aside and made available for the construction of the aforesaid overhead crossing could not be legally used for the acquisition of rights of way required to be obtained for the construction of said improvement, or for the settlement of any property damage claims arising by reason of said improvement; that it was also necessary that appropriate action be taken by the County of Greenup and the City of Greenup for the closing of the grade crossings proposed to be closed, or desired to be closed, on account of said improvement; that following the execution of the aforesaid contract the Department of Highways for the Commonwealth of Kentucky entered into negotiations with this defendant and with the plaintiff, Greenup County, and with the City of Greenup, to the end that funds might be provided for the purchase of necessary rights of way and the settlement of property damage claims and that appropriate action be taken for the closing of said grade crossing.

"That thereafter under date of June 7, 1939, a written contract was entered into between this defendant, the City of Greenup and the plaintiff, Greenup County, which provided, in substance, that this defendant would contribute and pay to the Department of Highways for the acquisition of necessary rights of way the sums set out in said contract, to-wit: $31,000.00 and that said Greenup County would assume liability for and obligate itself to pay all claims for property damage that might be established by owners of property situated in Greenup County and outside the corporate limits of the City of Greenup on account of the construction of said overhead crossing and the closing of the aforesaid grade crossings, or on account of the relocation or changes in grade of highways made in connection with said improvement and further that said Greenup County would, by appropriate legal proceedings, cause the grade crossings above referred to, * * * to be vacated, closed and abandoned; that said contract further provided, in substance, that the City of Greenup would enact such ordinances and take such other steps as might be necessary for the closing, vacating and abandonment of the grade crossings within the corporate limits of the City of Greenup described in said contract and would assume and obligate itself to pay all claims for property damage that might be established by owners of property situated within the corporate limits of the City of Greenup on account of the construction of said improvement and the approaches thereto, or on account of any relocation or changes in grade of streets or highways made in connection with said improvement, or on account of the closing and abandonment of the grade crossings within the City of Greenup as described in said contract; that the execution of said contract by and on the part of Greenup County was duly authorized and directed by the Fiscal Court of Greenup County and that the execution of said contract by the City of Greenup was duly authorized and directed by an Ordinance duly enacted by the City Council of the City of Greenup. * * *

"That thereafter the plaintiff, Greenup County, failed and refused to carry out the provisions of said contract, or to perform the obligations therein assumed by it, whereupon, the City of Greenup filed in the Circuit Court of Franklin County, Kentucky, its petition in equity" praying "for a declaration of its rights under the aforesaid contract and for an injunction requiring the performance of Greenup County of the obligations set out in said contract above referred to and described; that thereafter a judgment was duly entered in said cause, which said judgment specifically adjudicated that the contract hereinbefore referred to between the plaintiff, Greenup County, The City of Greenup and this defendant was a valid contract and binding upon the parties thereto; that said judgments further enjoined and commanded the defendants in this said suit, including the plaintiff herein, Greenup County, to carry out all the obligations undertaken by them as set out in said contracts above referred to and described, all of which was thereafter done and performed. * * *

"That thereafter this defendant paid to the said Department of Highways the aforesaid sum of $31,000.00, which said money was used and expended by the plaintiff herein, Greenup County, in the purchase and acquisition of rights of way required in connection with the construction of the aforesaid overhead crossing and the changes thereby necessitated in the location of the highways affected; that Greenup County expended many thousands of dollars in the settlement of property damage claims growing out of the construction of said overhead crossing and the closing of the hereinbefore described grade crossings; that the County of Greenup, by appropriate legal...