Louisville City Ry. Co. v. City of Louisville

• Decision Date: 05 December 1871
• Parties: Louisville City Railway Co. v. City of Louisville.
• Court: Kentucky Court of Appeals

71 Ky. 415

Louisville City Railway Co. v. City of Louisville.

Court of Appeals of Kentucky.

December 5, 1871

APPEAL FROM LOUISVILLE CHANCERY COURT.

BARRET & ROBERTS, HARLAN & NEWMAN, For Appellant,

CITED

Act of February 15, 1864, incorporating the appellant.

Elliott's Digest of Laws and Ordinances of Louisville, 207.

4 Bush 478.

T. L BURNETT, F. T. FOX, For Appellee.

OPINION

LINDSAY JUDGE:

By an act approved February 15, 1864, the General Assembly incorporated the Louisville City Railway Company, with authority for and during the term of thirty years to construct, maintain, and operate single or double-track railways over and along such streets or highways within the city of Louisville as its general council might authorize, in such manner and upon such terms and conditions, and with such rights and privileges, as might be secured by contract with said general council, " as provided in an act for the benefit of Louisville, approved March 2, 1863." By this act the general council was empowered to have constructed a railroad or railroads, with single or double tracks, in such streets as might by resolution be designated, and it was provided " that to carry out the powers granted in section 1 of this act the general council may, by contract sale, or bargain, empower any corporation or corporations parties or company, to construct said streetrailroads, the general council reserving all rights to regulate and control the same."

On the 9th of August, 1864, an agreement was entered into between the appellant and the general council of the city of Louisville by which the latter consented that the former might construct and operate a street-railroad or railroads over and along certain streets, among which was Jefferson Street from Twelfth Street to its junction with the Bardstown Turnpike. The right of appellant to operate its railroads was to continue thirty years, and until the city should elect to purchase its tracks, cars, grounds, etc., and pay therefor in the manner set out in the agreement.

Among other things this contract stipulated by its seventh section that " all railway tracks constructed by the Louisville City Railway Company under this agreement shall be of the gauge of four feet, and of the most approved rail, and the same shall be laid in the best manner and according to the mode of construction of the best street-railroads in other cities of the country, and in such manner as to be the least impediment to the ordinary use of the streets, with suitable crossings at the gutters so as to permit the flow of water under the same, and on such present grades of the streets, or on such grades as the general council may hereafter establish; and said roads shall be laid in such a manner that the rails thereof shall not be higher than the level of the adjacent street-pavements."

The tenth section is in these words: " And provided further that the city of Louisville shall not be liable to said railway company for any damage said company may incur from the breakage of any sewer or water-pipe, or from any delay in the transportation of passengers that may be incurred by the laying of sewers, water or gas-pipes, or the necessary repairing of the same, or from any delay or damage that may be caused by fire or otherwise."

Since the consummation of this agreement the railway company has constructed over twenty-four miles of track, at a cost of near four hundred thousand dollars. In the construction of this track two patterns of rail have been used, one known as the " crescent" and the other as the " tram" rail.

In 1864, and during the time the greater portion of these railways were being constructed, the streets of Louisville were either bowldered or macadamized. Since 1867 the city has inaugurated a system of street improvements by which the Nicolson pavement is being gradually substituted for those in use prior to that time. Out of the reconstruction of a portion of Jefferson Street with the Nicolson pavement grows one of the matters involved in this litigation. The city gave notice to the company that it must remove its tracks upon that street for a distance of about twelve hundred and eighty yards, and put down, as the construction of the Nicolson pavement progressed, new tracks of tram-rail; otherwise the city would remove such track and construct the pavement without itself providing the tram or other rail, or leaving a space in the pavement for any character of track.

Inasmuch as the track thus ordered to be taken up and reconstructed had originally been put down with the crescent rail with the consent and implied approval of the city, the company denied its right to take the proposed action. But to prevent interruption of the street improvement, and to save the rights of the appellant, an agreed case was made up and submitted to the chancellor of the Louisville Chancery Court for adjudication. The railway...