Louisville & N.R. Co. v. City of Louisville

• Decision Date: 18 December 1908
• Citation: 114 S.W. 743
• Parties: LOUISVILLE & N. R. CO. v. CITY OF LOUISVILLE (two cases).
• Court: Kentucky Court of Appeals

114 S.W. 743

LOUISVILLE & N. R. CO. v. CITY OF LOUISVILLE (two cases).

Court of Appeals of Kentucky.

December 18, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

"To be officially reported."

Two proceedings by the City of Louisville against the Louisville & Nashville Railroad Company to condemn a right to extend certain streets across the railroad's right of way. From a decree assessing damages in each case, the railroad company appeals. Reversed, with directions.

Helm &amp Helm, Henry L. Stone, and Benjamin D. Warfield, for appellant.

A. E Richards, Elmer C. Underwood, and Rowan Hardin, for appellee.

CARROLL J.

These two cases, involving substantially the same questions of law and fact, were heard, and will be disposed of, together. In each the city of Louisville sought to condemn the land and right of way of the railroad company for the purpose of establishing two streets across the same. The action of the city was resisted upon several grounds that will be noticed in the course of the opinion.

The first objection is that the charter of the city of Louisville does not authorize, except in a general way, condemnation proceedings for the purpose of opening streets; and it is argued that, in the absence of express authority, the city cannot invoke the power of eminent domain for this purpose. Section 2831 of the Kentucky Statutes of 1903, being a part of the charter of cities of the first class, reads: "Whenever property shall be needed for appropriate municipal purposes, either within the boundaries of the city or the county, the board of public works may, with the consent of the mayor, if the amount be under two thousand dollars, order the condemnation of such property; and if the amount be over two thousand dollars may, with the consent of the mayor and the general council, order the condemnation of such property. The proceedings for the condemnation of property for such purposes shall be instituted and prosecuted in the name of the city, by the city attorney, as provided in this act for the condemnation of property for park purposes." Section 2852, relating to the condemnation of land for park purposes, provides that whenever in the opinion of the board of park commissioners property shall be needed for park purposes, the said board may by resolution reciting such need order the condemnation of such property, and the proceedings for such condemnation shall be in the Jefferson circuit court. It sets out in detail the manner of procedure, and provides that "upon return of the verdict of a jury the court shall enter judgment vesting in the park commissioners of the city the title to the property described and condemned, the said judgment to take effect upon the payment into court by said board of the amount of money named in the verdict and the taxed costs of the proceedings." The statutes and methods of procedure were approved in Board of Park Commissioners v. Dupont, 110 Ky. 743, 62 S.W. 891, and we think they conferred upon the city in terms as express as need be the right to condemn land for streets and highways. Although the power of eminent domain is not inherent in municipalities and may not be exercised by them without statutory authority, it is not necessary that the statute should specifically mention streets, alleys, highways, or other purposes for which the municipality may condemn property. The general power of condemnation for appropriate municipal purposes confers the authority to condemn for every necessary municipal purpose. But, if this be admitted, it is further insisted by counsel that property already dedicated to public use cannot be taken for another public use unless authority so to do is expressly conferred. So that, if this view is sound, the city could not under a general power of condemnation for municipal purposes take for a street the land or right of way of a railroad company which had theretofore been devoted to a public use and was being so used, because the charter does not, in terms, give the city the right to condemn land devoted to a public use. In support of this position, our attention is called to some Kentucky cases that we will notice. In Ruttle v. City of Covington, 10 S.W. 644, 10 Ky. Law Rep. 766, the question involved was whether or not the charter of the city of Covington or the act incorporating the Elizabethtown, Lexington & Big Sandy Railroad Company conferred the right to permit the railroad to use and occupy the streets of the city over the protest of certain persons who objected upon the ground that it would injure their property. The charter of the city provided that "the council shall also have exclusive control of the streets, sidewalks, lanes, alleys, market place, and other public grounds within the corporate limits and shall cause the same to be kept clean and in repair," and that of the railroad company that "it may construct, operate, and maintain a railway or railways from any point or points on the line of its railway to the cities of Newport, or Covington, or either of them, and from any point or points on its said line to any point or points on the line of the Kentucky Central Railroad." In denying the right of the council to grant the right of way, the court said: "A municipal legislature cannot grant the right to a corporation or individual to appropriate and use the streets of a town or city for any purpose not contemplated by the Legislature when the charter was granted, and which would tend to obstruct and hinder the free use of the streets for the purpose and in the modes they are commonly understood to be dedicated for public and private use. And, as laying down railway tracks is not such an appropriation or use of streets of a town or city as they are ordinarily intended for, and as was manifestly intended by the section of the charter quoted, it seems to us no power, either express or implied, has been conferred by the city charter of Covington upon the board of councilmen to grant the right of way to the company. *** Building and operating a railroad upon the streets of a town or city necessarily results in inconvenience and injury to those residing or having real estate adjacent to such streets, and the right of a company to thus appropriate to its use what was intended to be used by the public for different purposes, and upon the faith of which private rights and interests have been invested should never be implied, but permitted to be exercised only where there is a clearly expressed grant by the Legislature. *** The Legislature has the undoubted power to authorize the construction and operation of a railroad through a city or town and upon its streets when they are not wholly obstructed, even without the consent of the municipal legislature. But the authority must be conferred by express enactment, or in such language that it can be necessarily implied. *** As the Legislature has not seen proper to give to the company in this case, in express terms, the right claimed, we are not authorized to strain the language of the statute for that purpose, when the effect would be to seriously impair the usefulness of the public streets of Covington, and do injury to the rights of individuals." To the same effect is Cornwall v. L. & N. R. Co., 87 Ky. 72, 7 S.W. 553; Commonwealth v. City of Frankfort, 92 Ky. 149, 17 S.W. 287; L. & N. R. Co. v. Whitley County Court, 95 Ky. 215, 24 S.W. 604, 44 Am.St.Rep. 220. It will be observed that neither the charter of the city nor the act incorporating the railroad company conferred by express enactment or necessary implication the right to use the streets for railroad purposes; and for this reason the right was denied.

But here the right is conferred by necessary implication. It would be a very narrow view of the statute quoted to hold that it conferred the power to open a street to the line of the railroad, but not the authority to cross it. We think that it follows, as a necessary consequence of the power to condemn, that this power may be exercised, not only upon private property, but upon property devoted to a public use, especially when the new use does not destroy the previous use, and when both of the uses may be enjoyed at the same time without the unreasonable impairment of either. This view is supported by the great weight of modern adjudication. Thus it is stated in Elliott on Roads and Streets, § 219, that: "The authority to take property seized and appropriated to another public use may be implied from the language of the statute, but this can only be so where the words employed and the evident intent of the statute make it clearly the duty of the courts to give force to the implication. The intent of the Legislature to destroy the rights granted by former statutes must unequivocally appear. A grant of authority to appropriate land seized under former statutes, or previously seized for public use, cannot ordinarily be inferred from a mere general grant. The general rule is that, if the two uses are not inconsistent, both may stand together without material impairment of the first. Authority for the second use may be implied from a general grant; but, if they cannot coexist without material impairment of the first, authority to take from the second cannot be implied from a mere general grant of authority to condemn." To the same effect is Elliott on Railroads, § 1098; Lewis on Eminent Domain, § 276; Dillon on Municipal Corporations, § 588; 15 Cyc. 616; 10 Am. & Eng. Ency. of Law, 1095.

When the new public use will destroy the previous use to which the property was devoted, then the authorities before cited agree that the power must be conferred in express terms and strictly followed, and in this view we concur. But the establishment of these streets across the...