Lexington & E. Ry. Co. v. Hargis

• Decision Date: 21 May 1918
• Citation: 180 Ky. 636,203 S.W. 525
• Parties: LEXINGTON & E. RY. CO. v. HARGIS.
• Court: Kentucky Court of Appeals

203 S.W. 525

180 Ky. 636

LEXINGTON & E. RY. CO. v. HARGIS.

Court of Appeals of Kentucky.

May 21, 1918

Appeal from Circuit Court, Breathitt County.

Action by J. E. Hargis against the Lexington & Eastern Railway Company. From judgment rendered, defendant appeals. Reversed and remanded for new trial.

Benjamin D. Warfield and Jas. J. Donohue, both of Louisville, O. H Pollard, of Jackson, and S. M. Wilson, of Lexington, for appellant.

Chester Gourley and South Strong, both of Jackson, Jno. C. Eversole of Booneville, and Hazelrigg & Hazelrigg, of Frankfort, for appellee.

CLAY C.

On June 8, 1889, James W. Lindon, who was the owner of a large tract of land in Breathitt county, sold and conveyed to the Kentucky Union Railway Company a right of way through said land; the deed containing the following covenants:

"Said party of the second part agrees and binds itself to construct a good road, to be used as a private passway across said railroad at grade, or underneath said railroad, at its option, which crossroad shall be 12 feet wide with good grade, at 'Hie's branch'; said crossroad to be so constructed and graded as to enable said parties of the first part or other parties to haul coal, timber, etc., over same on wagons out of the branch above said railroad to Main Cane creek; also to construct similar roads and crossings, in like manner as above described, at the Jimmie branch; also at the Sugar Camp branch, also at the 'Old House' or 'Meadow Hollow'; and also at Granny's branch. All of these roads are to be constructed and used for the purpose of hauling on same with farm wagons drawn by teams of horses or cattle. Said party of the second part further agrees to construct a trestle at the branch where the party of the first part now lives, and also at 'Turkey' branch, so as to give a good roadway under said railroad and across the said second party's right of way. The said roadway at these two hollows to be similar in construction and use to the ones above described, except that these two are to cross underneath said railroad."

Thereafter the Lexington & Eastern Railway Company purchased all the property, rights, privileges, and franchises of the Kentucky Union Railway Company. On February 16, 1899, J. W. Lindon conveyed the land in question to Joanna E. Hargis, wife of A. H. Hargis, reserving however, a life estate in himself and also in his wife, America Lindon. In the year 1900, J. W. Lindon and his wife, America Lindon, died, and Mrs. Hargis then became vested with the entire title to the land. In the year 1915, Mrs. Hargis, claiming that the roadways or passways constructed at Lindon branch, Sugar Camp branch, and Turkey branch pursuant to the covenants in the deed of June 8, 1889, and used by her and her predecessors in title with the acquiescence of the two railway companies for more than 20 years, were obstructed and rendered impassable by the Lexington & Eastern Railway Company, brought this suit to recover damages. From a verdict and judgment in her favor for $2,000, the Lexington & Eastern Railway Company appeals.

According to several witnesses for plaintiff, J. W. Lindon's home was located at Lindon branch. On the opposite side of the railroad was his apple orchard. When the railroad company first constructed its trestle at this point, it extended from one hill to the other, and there was left a private passway leading from the inclosure around Judge Lindon's home under the trestle and through a gate into the orchard. This passway was used by the Lindons and appellee, with the acquiescence of the railroad company, until the year 1912, when the railroad company built a fill which entirely closed the passway. At the time, however, that the original deed from Judge Lindon to the Kentucky Union Railway Company was made, there was a public road crossing the proposed right of way at Lindon branch, and this public road is now unobstructed. It further appears from the testimony for plaintiff that the Kentucky Union Railway Company, in the year 1889, constructed from one foothill to the other a trestle at Sugar Camp branch, and left underneath the trestle a passway which ran through a gate and up a hollow. This passway was about 10 or 12 feet wide, and went out through the bottom and around to the coal bank and up the creek. In the year 1912, the railway company made a fill at this point which closed that passway. However, a few feet away is another passway which was left open when the fill was constructed, but according to plaintiff's evidence this passway is not fit for use by wagons and teams during the winter season. Plaintiff's witnesses also testified that the railway company constructed a steel bridge at Turkey branch, but in doing so filled up the passway thereunder with large stones, so that it could not be traveled by wagons drawn by horses or cattle.

According to the defendant's witnesses, the passway claimed by plaintiff at Lindon branch was simply a footpath, or narrow walkway, which was not intended for wagons, and was seldom if ever, used for that purpose. It was further shown that the public road which had been located at that point for over 50 years was in fairly good condition, and had not been obstructed in any way by the fill. With respect to the passway at Sugar Camp branch, defendant's witnesses testified that there was now a passway in the bed of the branch of the width of 12 feet which had not been obstructed, and that this was the only passway that had ever existed at that point. The same witnesses also testified that there was built at Turkey branch in the year 1889 a steel bridge which rested on stone and concrete abutments. In the year 1912, an outer jacket of concrete was laid on the stone abutments. ...