Kentucky and Indiana Bridge Company v. Krieger, &C.
| Decision Date | 20 June 1891 |
| Citation | 91 Ky. 625 |
| Parties | Kentucky and Indiana Bridge Company v. Krieger, &c. |
| Court | Kentucky Court of Appeals |
THOMAS W. BULLITT FOR APPELLANT.
HELM & BRUCE FOR APPELLEES.
As appears from his petition filed November 4, 1886 and is otherwise shown, the plaintiff, now appellee, Jacob Krieger, owns a lot of land in the city of Louisville, described as follows: Beginning at a point in the north line of Duncan street 105 feet east of Fifteenth; thence north parallel with the latter 153 feet to south line of Portland avenue; with that line east 98 feet to the line of a lot owned by the Louisville, New Albany and Chicago Railroad Company; with it south 96 feet to Duncan street, and thence west to the beginning.
It further appears that he has upon that lot a hominy mill and grain elevator, through the center of which is a way from Duncan street to Portland avenue for wagons to pass; but not being wide enough for them to be turned around within the building, they necessarily pass from one street to the other.
It was, in substance, alleged in the petition that the defendant, now appellant, the Kentucky and Indiana Bridge Company, had threatened, and unless immediately restrained would construct a railway track along Portland avenue in front of and around the plaintiff's property, making a curve nearly opposite the entrance thereof, whereby he would be deprived of reasonable use of the street in connection with the business for which the buildings were erected and adapted, and his property greatly injured and lessened in value. An injunction, as prayed for, was granted by the chancellor, restraining the defendant tearing up Portland avenue, or laying any track thereon between Fourteenth and Fifteenth streets until further order of court.
November 9, 1886, an answer was filed, in which was a denial that defendant had threatened or intended to lay or construct a railway around plaintiff's property, or that the railway which it proposed to construct would make a curve in front of the entrance into his property. It was stated in the answer substantially that defendant is a corporation authorized by its charter to construct a railroad bridge across Ohio river between Louisville and New Albany, and a railroad track or tracks so as to connect its bridge with railroads and depots in Louisville; and that it was empowered by an ordinance of the General Council of said city to lay down a single or double railroad track on Portland avenue in front of plaintiff's property for the purpose of connecting its bridge with the tracks entering the freight yard of the Louisville, New Albany and Chicago Railroad, and also with tracks entering yard and depots of the Ohio and Mississippi Railroad Company, and other railroad tracks in Fourteenth street; that its connection with the tracks mentioned will be made at points east of and nearer to Fourteenth street than the property of plaintiff; that its track, whether single or double, will be laid in conformity to the grade of Portland avenue, and in such manner as not to offer any obstruction to use of the street in front of said lot at all, and so wagons can cross the same and use the street without difficulty; that said track in front of plaintiff's lot will be used comparatively a very small portion of each day, and, not being designed for use of standing trains, they will not, unless in case of unavoidable accident, stop or stand in front of said lot, but pass immediately beyond the same, causing obstruction in the street not more than a few minutes at a time. It was further stated that the defendant, while desiring to lay a double track in said street, was willing, until the final hearing of the case, to lay and use only a single track railroad in the center of Portland avenue, if so required by the court.
November 23, 1886, the defendant made, in open court, a motion for modification of the injunction so far as not to forbid laying a single track railroad in Portland avenue, the whole question involved in the injunction to be reserved for final action; and November 26 an order was made modifying the injunction to the extent of permitting defendant to lay a single track railway along and in center of Portland avenue in front of plaintiff's property in the manner prescribed in the order, and upon the condition that freight trains shall not be run in front of plaintiff's property more than twice for and by each company using said track during business hours of the day. June 24, 1887, upon final hearing, judgment was rendered to the effect that the temporary injunction as modified be perpetuated. But a motion for new trial having been made, was, January 11,...
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