Louisville & N.R. Co. v. Finley

• Decision Date: 15 November 1887
• Citation: 86 Ky. 294,5 S.W. 753
• Parties: LOUISVILLE & N. R. CO. v. FINLEY.
• Court: Kentucky Court of Appeals

5 S.W. 753

86 Ky. 294

LOUISVILLE & N. R. CO. v. FINLEY.

Court of Appeals of Kentucky.

November 15, 1887

Appeal from circuit court, Whitley county.

Wm Lindsay and Hill & Alcorn, for appellant.

Hargis & Eastin and A. Duvall, for appellee.

HOLT J.

This action is in the nature of case, to recover damages from the Louisville & Nashville Railroad Company by reason of the construction of its road over and near the property of the appellee, H. F. Finley. It consists of three tracts, lying near to esch other, but not adjoining. Over two of them he sold the right of way to the company. The road, as built runs through one of these, dividing it; and as to it the claim for damage is for the non-building of crossings, as required by the appellee's charter, to enable the owner to pass from one portion to the other, where it has been thus divided. It does not clearly appear from the plat on file whether the other one of these two tracts is cut in two by the road, or whether it merely cuts off from one corner of it so much land as is taken for the right of way; but, in any event, the court by its instruction restricted the right of recovery as to it to any earth taken therefrom, if any, by the company, and not embraced by the grant to it. The main controversy is as to the third lot of land. The damage awarded by the jury, save a comparatively small amount relates to it. It is situated in the suburbs of the town of Williamsburg, and at the junction of the Jacksboro and Pine Knot roads, and consists of two acres of land. Upon it the appellee had, prior to the construction of the railroad erected a valuable dwelling-house, with necessary outbuildings, such as a stable, etc., and was occupying it with his family as his home. The Jacksboro road bounds the lot on the east side, and upon it the house fronts; while, up to the time of the building of the railroad, the Pine Knot road ran along the south side. It does not appear whether at that time these roads at that point were a part of the streets of the town or not. It is admitted that the lot was within the town, and that the Jacksboro road was its principal street. We shall assume, however, as do the appellant's counsel, that they were at that point ordinary public roads.

Prior to the building of the railroad the grade of the lot was higher than either of the roads abutting it. The railroad was constructed on the Pine Knot road side of the lot, about 40 yards from it, and upon land acquired from others. At that point it was built upon a considerable hill, and therefore crossed the Jacksboro road at a high grade. This necessitated the raising of the grade of the latter road so that the public in traveling it could cross the railroad. The fill thus made extended from the railroad crossing for over a hundred feet in front of the appellee's lot. At the railroad it was about 14 feet high, and thence gradually declined. By thus raising the grade the Jacksboro road was lessened in width for travel from 40 to 14 feet, and no wall was erected along this embankment next to the appellee's lot to protect it. The company, without having any authority from the county, removed the Pine Knot road from its old location along appellee's lot to the south side of its road, thus bringing its road and the high embankment upon which it was built between appellee's property and the Pine Knot road. In this way egress and ingress to his stable lot, and from a good portion of his property, was cut off as to both roads. He complains of this; also that it caused his lot to overflow with water; the mud and dirt to spread back over it; a frogpond to form on the lot opposite and near to his house, engendering malaria; and of other actual injuries, which we need not mention.

The record shows that certain depositions were used as evidence upon the trial which are not embraced by the bill of exceptions. The clerk, in copying the record, has interpolated in the bill a statement signed by him for the purpose of identifying them. This cannot be done. It cannot be left to him to determine what testimony was offered upon the trial. The depositions are not identified by either the bill or any order of court. We cannot, therefore, consider any questions relating to the testimony offered or introduced upon the trial, as all of it is not before us in legal form. It is also questionable whether we can consider the instructions. The bill of exceptions...