Louisville Hydro-Electric Co. v. Coburn
| Decision Date | 16 November 1937 |
| Citation | 270 Ky. 624 |
| Parties | Louisville Hydro-Electric Co. v. Coburn. |
| Court | United States State Supreme Court — District of Kentucky |
2. Limitation of Actions. — In action against power company for damages from overflow of land caused by an embankment maintained by the power company on the Ohio river, even though failure to construct opening in embankment sufficient to provide for escape of flood waters was negligence, where expense of constructing openings would be expensive and disproportionate to damages done, a recovery once for all was required.
3. Limitation of Actions. — Although a structure be unlawfully or negligently built by a public service corporation, if it is intended to be permanent and cannot be repaired or remedied so as to avoid recurring injuries by flooding of land at a reasonable expense, there must be a recovery once for all.
4. Limitation of Actions. — In action against power company for damages from overflow of land caused by an embankment, where embankment was used by power company as a bed for railroad tracks which were used continuously, and was necessary for proper and efficient operation, court properly instructed jury as matter of law, that embankment was a permanent structure, as respects recovery once for all.
5. Limitation of Actions. — Action instituted in 1934 against power company for damages from flooding caused by a permanent embankment in which openings to provide for escape of flood water could not be constructed except at an expense disproportionate to damage done, the first injury having occurred in 1927, was barred by the 5-year statute of limitations (Ky. Stats., sec. 2515).
6. Limitation of Actions. — Where an injury or nuisance complained of is permanent, measure of damages is depreciation in market value of the property, and limitations begin to run from completion of structure causing the injury, the action being barred in five years from that time, and all damages for past, present, and future injuries must be recovered in one action (Ky. Stats., sec. 2515).
7. Limitation of Actions. — Where power company had obtained permit from proper authorities to erect power plant and embankment, alleged failure to follow statutory procedure did not render construction unlawful, so as to make 15-year statute rather than 5-year statute applicable to action for damages from flooding caused by the embankment (Ky. Stats., secs. 1599b-1, 1599b-2, 1599c-1, 1599c-2, 2505, 2515).
8. Limitation of Actions. — Where power company did not enter upon plaintiff's land to make surveys and examinations, and bond required by statute was not a condition precedent to right to do construction work, power company's alleged failure to execute bond which was required for purpose of indemnifying property owners for actual damages sustained on account of surveys and examinations for proposed embankment and power station did not render construction unlawful, so as to make 15-year statute applicable to action for damages from flooding caused by embankment (Ky. Stats., secs. 1599b-1, 2505).
9. Limitation of Actions. — Statute prescribing the procedure for obtaining a permit from proper authorities to construct transmission lines and appliances along and across public roads had no application to power company's construction of embankment which allegedly caused a flooding of plaintiff's land so as to render construction unlawful for noncompliance therewith as respects limitations (Ky. Stats., secs. 1599c-1, 2505, 2515).
10. Limitation of Actions. — Provision in power company's license to construct power station and embankment, that licensee should be liable for all damages occasioned by the construction, and that in no event should the United States be liable, was inserted for sole purpose of protecting the United States and did not create a right in favor of third persons so as to render 15-year statute of limitations applicable to property owner's action against power company for damages from flooding caused by embankment (Ky. Stats., sec. 2505).
Appeal from Jefferson Circuit Court.
WILSON W. WYATT and PETER, HEYBURN, MARSHALL & WYATT for appellant.
B.M. HARWOOD, R.F. PEAK, J.W. FITZPATRICK, DONALD JUSTICE and L.D. GREENE for appellee.
Reversing.
The appellee, Edward Coburn, owns a lot fronting 63 1/2 feet on Tarascon avenue and extending back 126 feet along Plum street in a section of Louisville known as Shippingport. It is located near the south bank of the Ohio river and 300 feet east and up the river from an embankment constructed in 1926 and 1927 by the appellant, Louisville Hydro-Electric Company. The embankment is about 2,500 feet in length, 100 to 120 feet in width at the bottom, 16 to 20 feet in width at the top, and 20 to 25 feet in height, and extends from appellant's power plant in the Ohio river to the Louisville and Portland canal. Upon the embankment is a railroad track over which heavy machinery is hauled to and from the power plant. The embankment affords means of ingress and egress to and from the plant during periods of high water in the Ohio river, and is in fact an extension of dam No. 41, erected by the United States government in 1927, which extends from the Indiana shore to the point in the river where appellant's power plant is located, which is about 650 feet from the south bank of the river at Shippingport.
The power plant and embankment were constructed under a license granted to the appellant by the Federal Power Commission November 11, 1925. On April 3, 1934, appellee brought this action against the Louisville Hydro-Electric Company to recover damages alleged to have been caused by the unlawful and negligent construction of the embankment. The petition, as amended, alleges, in substance, that the embankment prevents drainage of the natural surface waters from appellee's land, impounds the backwater of the Ohio river in still and stagnant pools on his lot for long periods of time, and creates pools which prevent access to his property from either Tarascon avenue or Plum street; that the embankment was negligently constructed in that no provision was made for the escape of accumulated waters through it; that it is not a permanent structure, but was erected solely for hauling heavy material over it for use in the construction of the power plant, and has been abandoned; that the alleged negligent construction could have been remedied at a reasonable cost by removing part of the embankment or tunneling under it to permit the escape of accumulated waters; and that the power plant and dam were unlawfully constructed in that appellant failed to comply with sections 1599b-1 and 1599b-2 and 1599c-1 and 1599c-2, Kentucky Statutes. The averments of the petition and amended petitions were traversed, and the 5-year statute of limitations (Ky. Stats., sec. 2515) was pleaded. The appellant alleged affirmatively that a large part of the embankment was completed in 1926, and that the power plant and dam were completed in 1927; that the plans and specifications for the power plant and dam and the completed work were licensed and approved by the Federal Power Commission; that they were carefully and prudently constructed; that the embankment is a permanent structure and is requisite to the operation of the plant and an integral part of the power project; that the railroad track along the top of the embankment is regularly maintained and is a means of ingress and egress to and from the plant; that the embankment is the only means of ingress or egress in times of high water, and both it and the power plant were built in accordance with proper and recognized engineering plans and methods; that drains or other openings or tunnels through the embankment could not be constructed without seriously imperiling the embankment; and that they would be of no value whatsoever to appellee, and that the embankment cannot be removed, replaced, repaired, or rebuilt except at an excessive and exorbitant expense. After the issues were completed, the case was tried before a jury which returned a verdict for the plaintiff in the sum of $500, and, from the judgment entered thereon, the Louisville Hydro-Electric Company has appealed.
The uncontradicted evidence shows that the embankment does not prevent drainage of the natural surface waters from appellee's land and does not create pools which prevent access to his property through Tarascon avenue or Plum street. The evidence does show, however, that the water above the embankment in Shippingport is 18 to 23 inches deeper in times of flood than it is below the embankment. Appellee's lot is low lying land, and is frequently flooded. During extraordinary floods in the Ohio river, the buildings on the lot are...
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