L. & N. R. R. Co. v. Franklin

• Decision Date: 07 June 1916
• Citation: 170 Ky. 645
• Parties: Louisville & Nashville Railroad Company v. Franklin, et al.
• Court: Kentucky Court of Appeals

170 Ky. 645

Louisville & Nashville Railroad Company v. Franklin, et al.

Court of Appeals of Kentucky.

Decided June 7, 1916.

Appeal from Webster Circuit Court.

C. H. MOORMAN, HUNT & WITHERS and YEAMAN & YEAMAN for appellant.

BOURLAND & BLACKWELL for appellees.

OPINION OF THE COURT BY JUDGE SETTLE. — Affirming in part and reversing in part.

These two actions, in one of which the appellees, J. W. Franklin, and twelve others are plaintiffs and in the other the appellees, J. W. Stodghill, and ten others are plaintiffs, were brought in equity against the appellant, Louisville & Nashville Railroad Company, to compel the abatement, by a mandatory injunction, of an alleged nuisance created and maintained by the latter, the petition in each case alleging, in substance, that the appellees are the owners and in the actual possession of certain several tracts of land in Webster county, described in the petitions, lying above and on the northeast side of the appellant, Louisville & Nashville Railroad Company's railroad and right of way; that the line of railroad is known as the Morganfield & Atlantic railroad, runs from Morganfield, in Union county, to Providence, in Webster county, this State, and is owned and operated by the appellant Louisville & Nashville Railroad Company; that the line of railroad crosses what is known as Caney Fork valley, in Webster county, where appellees' lands lie, at right angles with the flow of the water therein; that the Caney Fork valley contains fifteen or twenty thousand acres of very fertile but low land and is drained by several public and private ditches which, before the construction of the railroad, furnished a reasonable outlet for the water which fell upon and collected in the valley following usual and ordinary rainfalls.

The particular injuries complained of from appellant's construction and maintenance of its railroad are thus set forth in the petitions:

"Plaintiffs say that said railroad embankment as constructed and as maintained by the defendant is constructed and maintained in a negligent, wrongful and unlawful manner and in violation of the rights of these plaintiffs in this, that said railroad embankment as constructed and as now maintained crosses a private ditch of the plaintiff, W. W. Carter, which private ditch had and has a large carrying capacity and where same is crossed by defendant's railroad a small sewer pipe or tile opening which is wholly inadequate and insufficient to furnish an outlet for the water which naturally flows down said ditch and which, before the construction of said railroad, passed on down unobstructed to its outlet, which is a large public ditch; that where said railroad embankment crosses a natural and well defined water course at or near the point where said railroad crosses the lower Clay and Bordley public road an embankment several feet in height was constructed and is now being maintained by defendant and no opening in said railroad embankment or other provision has been made for the outlet of said water which formerly naturally flowed from the northeast to southwest across where said railroads embankment is now thrown up, and by reason of said embankment being thrown up and no opening made therein, the water in said natural courses is completely dammed up and caused to flow upon the lands of plaintiffs during each and every rainfall of any consequence and the crops growing on many hundred acres are thereby frequently destroyed or greatly damaged and the lands of the plaintiffs, which are naturally fertile and productive, are rendered uncertain for tillage and practically worthless as farm lands and of no use for any other purpose; and they say that so long as said railroad embankment is permitted to remain in its present condition and without adequate openings it is reasonably certain that these overflows will continue to recur. They further allege that on account of the insufficient opening through said embankment at the point where it crosses the said ditch on the lands of W. W. Carter, the water therein in times of usual and ordinary rainfall in that vicinity is greatly impeded in its flow, is caused to overflow the banks of said ditch and flows back upon the lands of these plaintiffs, and said lands, which are fertile and productive, are rendered uncertain for crops and the crops thereon are frequently overflowed and destroyed or greatly damaged; and they say that by all the wrongs and grievances therein complained of, done, committed and permitted by the defendant, said lands are made swampy and the surrounding and adjacent country made unhealthful and the health of plaintiffs and their families greatly impaired, all to their great annoyance and damage.

"The plaintiffs further allege that good and sufficient openings can be placed in and through said railroad embankment sufficient to furnish an outlet for said water at the point where the W. W. Carter ditch strikes said railroad embankment or right of way and at the natural water course near the said public road without injury or damage to defendant's railroad and with no greater cost to defendant railroad company than the actual cost of putting said openings through said embankment, which cost will be trivial. * * * That prior to the building of said road and the throwing up of the embankment of said road through said Caney Fork valley, old Caney Fork creek had been straightened by a public ditch, known as the J. W. Franklin ditch, which said public ditch was constructed by assessing and collecting from plaintiffs and others along said ditch the cost thereof and that the same has ever since been and is now being maintained by assessment and collection of taxes upon the lands of plaintiffs.

"They state that in the construction of said railroad the defendant * * * threw up an embankment across said Caney Fork valley from three to five feet above the general surface of the land and that in crossing said public (Franklin) ditch piles from twelve to eighteen inches in diameter, were driven in the bed of said public ditch and a bridge erected thereon; that some seven or eight bents or rows of such piling were so driven in said public ditch, and plaintiffs charge that said piling so driven and now being maintained by the defendant causes logs, brush and debris of all sorts to lodge against same and cause a dam to form in the bed of said public ditch, sediment and sand bars to form and settle therein, thereby greatly diminishing the capacity of said ditch, obstructing the flow of ordinary and usual rainfalls in that vicinity and greatly increasing the labor and expense necessary in keeping said public ditch open, which is done as aforesaid by assessing the property of these plaintiffs and the collection of taxes thereon; and they further state that much of the lands of these plaintiffs is thereby flooded with water, their crops damaged and destroyed by each recurring heavy rainfall during the crop season. They say that the openings in said embankment across said valley and the bridge across said public ditch as constructed and as now maintained by the defendant railroad company are wholly inadequate and insufficient to permit the water which usually and ordinarily falls in that community to flow down said valley and through said public ditch within a reasonable time and that great and irreparable injury will result to these plaintiffs if said railroad embankment and the bridge across said public ditch are permitted to remain in their present condition; that plaintiffs cannot be adequately compensated by suits at law and judgments for damages for the injury and loss resulting to them, their lands, crops and said public ditch, and if said roadbed and bridge are permitted to remain in their present condition, frequent and vexatious suits will be necessary to in any manner compensate the plaintiffs for the injury and damage that will thereby result to them from defendant's said negligent and wrongful acts. Plaintiffs further allege that said rows of piling can be removed from said public ditch and a single span, steel girder bridge be placed across said public ditch without injury to the said defendant railroad company or its said railroad beyond the actual cost of making said repairs. * * * That plaintiffs have made frequent requests of the defendant railroad company to abate the above nuisance and to remedy the wrong by making said adequate openings through said embankment, but they say that the defendant has ignored their said requests and has failed to grant to them the relief to which they are entitled or any relief whatever."

The answer of appellant to each of the...