Greenup County v. Maysville & B.S.R. Co.

• Decision Date: 06 June 1889
• Citation: Greenup County v. Maysville & B.S.R. Co., 11 S.W. 774, 88 Ky. 659 (Ky. Ct. App. 1889)
• Parties: GREENUP COUNTY v. MAYSVILLE & B. S. R. CO.
• Court: Kentucky Court of Appeals

11 S.W. 774

88 Ky. 659

GREENUP COUNTY v. MAYSVILLE & B. S. R. CO.

Court of Appeals of Kentucky.

June 6, 1889

Appeal from circuit court, Greenup county; A. E. COLE, Judge.

"To be officially reported."

Suit in equity by Greenup county against the Maysville & Big Sandy Railroad Company, to compel defendant to restore to their former condition certain highways in that county, and for damages. A demurrer to the petition was sustained, and the suit dismissed. Plaintiff appeals.

B. E Roe and E. F. Dulin, for appellant.

Wadsworth Whitaker & Bennett, for appellee.

HOLT J.

The appellee, the Maysville & Big Sandy Railroad Company, was incorporated December 18, 1850. By an amendment to its charter, approved November 25, 1881, the general provisions of the act of March 4, 1850, incorporating the Maysville &amp Lexington Railroad Company, so far as the same were applicable, were made a part thereof, and the twelfth section of the act thus applied to it provides: "Whenever it shall be necessary for the construction of the railroad to intersect or cross any stream of water or water-course, or any road or highway lying in or across the route of said road, it shall be lawful for the corporation to construct the said railway across or upon the stream, or to cut or cross any such road or highway, and to change the location thereof during the process of the construction of said railway; but the corporation shall restore the stream or water-course, or road or highway, thus intersected, to its former state, or in a sufficient manner not to destroy its usefulness, and shall restore any road at a grade not exceeding the heaviest grade upon said road existing at the present time." In the absence of this statutory requirement, the general law would have imposed upon the company the duty of so far restoring a road as to render it fit for travel. A franchise must be prudently exercised. The right of a railroad to cross a highway does not authorize a material interference with the public travel. If by reason of excavations and erections and changes in the surface, it of necessity temporarily occurs to some extent, it is the duty of the company to so far restore it to its former condition as not to interfere materially with its usefulness to the public. It must be made safe and reasonably convenient for travel. A restoration to its former surface, level, or elevation is not of course required, but to its former passable condition and safe use by the public. 1 Ror. R. R. pp. 289, 545; Pierce, R. R. 244, 245. In this instance, however, the duty of the company, and the measure of it, was declared by statute. The appellant, Greenup county, brought this action in equity, the petition averring in substance, that the appellee, being insolvent, had entered upon, taken possession of parts of, and crossed one of its roads, (naming it,) at different places, had thus converted the same to its use, obstructing public travel; was then and had so been using it for over a year; had made no crossings; had in fact torn up those made by the proper officer of the county; and had failed and refused to restore the road to the condition prescribed by its charter, although the appellant had so demanded. An issue out of chancery was asked as to damages up to the time of trial, which were put at $5,000, and that the appellee be compelled by proper orders to restore, by crossings or otherwise, the former condition of the road to the extent named in its charter. A general demurrer to the petition was sustained, and the action dismissed. The lower court has not given any reasons therefor in the order of dismissal. It is intimated by counsel...