Louisville & N.R. Co. v. Hopkins County

• Decision Date: 14 May 1913
• Citation: 156 S.W. 379,153 Ky. 718
• Parties: LOUISVILLE & N. R. CO. v. HOPKINS COUNTY et al. [d]
• Court: Kentucky Court of Appeals

156 S.W. 379

153 Ky. 718

LOUISVILLE & N. R. CO. v. HOPKINS COUNTY et al. ^[d]

Court of Appeals of Kentucky.

May 14, 1913

Appeal from Circuit Court, Hopkins County.

Petition by Hopkins County and others to condemn a crossing over the tracks of the Louisville & Nashville Railroad Company for a new road. From an order requiring the railroad company to construct a bridge to carry the road over its tracks at its own expense, it appeals. Reversed and remanded.

Benjamin D. Warfield and C. H. Moorman, both of Louisville, and Laffoon & Waddill, of Madisonville, for appellant.

Latt F McLaughlin, of Madisonville, for appellees.

MILLER J.

This proceeding was begun by a petition to the Hopkins county court to establish a new road to be known as the "McLaughlin Avenue Public Road" through the suburbs of the city of Madisonville. The proposed highway crosses the land and right of way of the appellant at a point where its road passes through a cut 22 feet deep. The county court tried the case upon the exceptions of appellant to the report of the commissioners, and established the road. The judgment also required Hopkins county to pay the appellant $1 as its damages for the location of the public road over appellant's right of way, and required appellant to construct and maintain a reasonably safe and suitable overhead bridge across said railroad tracks; and it also determined as a matter of law that it was the duty of the appellant to construct and maintain said overhead bridge at its own expense, and that it was not entitled to compensation therefor.

Upon an appeal to the circuit court by the appellant, the case was tried upon the following agreed statement of facts:

"For the purpose of this case, it is agreed that the case may be submitted to the judge of the Hopkins circuit court on the following agreed statement of facts:

"(1) The proposed public road is of sufficient public utility necessity, and convenience to justify its establishment, and is the best and most convenient route between the points indicated in the petition therefor. It crosses the land and right of way of the Louisville & Nashville Railroad Company on a hill or elevation at a point where the said company has a cut through said hill some 22 feet deep for its railroad tracks; that, in order to provide a reasonably safe and suitable road where it crosses said railroad track, it will be necessary to construct and maintain an overhead bridge 18 feet wide over said cut and spanning the said railroad tracks. This point is the best and most convenient place in the vicinity to construct a safe and suitable crossing. It is impossible

for said public road to approach the said railroad tracks at said point or in the vicinity thereof at grade.

"(2) The Louisville & Nashville Railroad Company now owns and is in actual possession and use of said land and right of way crossed by said proposed public road, and has so owned and used and been in possession thereof continuously for over 30 years last past. Said land and right of way is a strip of land 80 feet wide being 40 feet on each side of the center line of its railroad track, and running indefinitely the length of its railroad track north and south. Said railroad company now uses, and during all of said time has used and intends to continue to use, the said strip of land for railroad purposes and for its railroad track and for all railroad purposes. Said railroad tracks have always been and are now and will continue to be used constantly by its railroad trains. The grade of said railroad tracks as it now exists has been so established for over 30 years and it is wholly impossible for either the railroad track or said proposed public road to be brought to the same grade at the point of crossing, and the only way there can be any travel over the said proposed road across the said strip of land is by the construction and maintenance of an overhead bridge, spanning its said railroad tracks. Said railroad tracks at that point run through the crest of a hill, and it was necessary in the construction of its tracks, over 30 years ago, to establish a grade and dig the cut through the hill which it then did, and that the said grade and cut as then established cannot be altered at the point of crossing; and through the cut the railroad track has a deep descending grade from north to south. The railroad cut through this hill is several hundred yards long, and no grade crossing can be made at all at or near the cut, and a grade crossing out of the cut in the vicinity would be dangerous, because of the steep grade of the track. The proposed public road does not approach the railroad track at grade, but at an elevation of some 22 feet above the said railroad tracks, and that the construction and maintenance of a reasonably safe and suitable overhead bridge at such crossing will be necessary. The actual cost of such a reasonably safe and suitable bridge at such place will be at least $2,500 for the original construction, and...