Louisville & N.R. Co. v. Lambert

• Decision Date: 28 April 1908
• Citation: 110 S.W. 305
• Parties: LOUISVILLE & N. R. CO. v. LAMBERT.
• Court: Kentucky Court of Appeals

110 S.W. 305

LOUISVILLE & N. R. CO. v. LAMBERT.

Court of Appeals of Kentucky.

April 28, 1908

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by S. H. Lambert against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Yeaman & Yeaman and Benjamin D. Warfield, for appellant.

Clay &amp Clay, for appellee.

CLAY C.

Prior to March, 1901, appellant, Louisville & Nashville Railroad Company, had constructed and was maintaining its tracks on Fourth street in Henderson, Ky. on a level with the surface of the ground. In March, 1901, appellant was granted by the general council of the city of Henderson the right to elevate its tracks. Acting under this authority it constructed a solid stone wall through the center of the street, which, at the place where appellee's property was situated, was about 15 feet wide and over 15 feet high. At the time the authority was granted and the work commenced, appellee was the owner of two lots of ground abutting on the south line of Fourth street. One lot ran with Fourth street 200 feet, and back with Green street 238 feet. This lot was vacant property, and could be said to front either on Fourth or Green street according to the use that might be made of it. The other lot, one block distant, lay on the corner of Elm and Fourth streets, and fronted 92 feet on Elm street and 190 feet on Fourth street. After the right to build the wall and operate trains thereon had been given to appellant, and after it had commenced work on the improvement, the appellee, on June 17, 1901, sold off the first-mentioned lot 50 feet fronting on Green street. On November 8, 1901, at which time the work had progressed to such an extent that the wall was from one-half to two-thirds built, appellee sold the remainder of the lot on the corner of Fourth and Green streets. On the 19th of September, 1902, appellee sold the lot on the corner of Fourth and Elm streets. At this date the wall had been completed and trains were being operated thereon. On the 25th day of April, 1906, appellee instituted this action to recover of appellant such damages as his property sustained by reason of the construction of said wall. A demurrer to the petition was overruled, and appellant thereupon filed an answer in which it denied any damages to appellee's property, and also pleaded the five years' statute of limitations. Upon a trial, appellee obtained a judgment for $760. A new trial was refused, and the railroad company is here on appeal.

Appellant first contends that the court erred in overruling its demurrer to the petition. While a motion to make more specific might have been properly sustained, the petition, in effect, alleges that appellee was the owner of the lots in question; that appellant constructed the wall; that this wall interfered with the ingress and egress to and from said lots and with the circulation of the air thereat; that the wall was so constructed as to render the grade much steeper than the grade of the tracks as they originally existed, which resulted in increased noise in the operation of the train, and caused cinders to be thrown upon appellee's property in much larger quantities; that by reason thereof appellee's property was materially damaged, in the sum of $1,500. We are of the opinion that these averments sufficiently state a cause of action, and that the demurrer to the petition was properly overruled.

Appellant further contends that the evidence offered by appellee was inadmissible for the reason that the witnesses were permitted to testify as to the depreciation in the market value of the lot without showing that such depreciation was caused by the construction of the wall. This contention, however, is not borne out by the evidence, for the record discloses the fact that each of the witnesses was asked what caused the depreciation, and each answered that it was the construction of the wall in question.

But appellant vigorously contends that as appellee sold two of the lots before the wall was completed, he had no cause of action as to them against appellant; and that the purchaser alone, who owned the lots at the time of the completion of the wall, had the right to sue. It is well settled in this state that the party owning the lots at the time the damage was done has the right to sue. This right is not affected by his subsequent parting with the title. Stickley v Chesapeake & Ohio Railway Co., 93 Ky. 323, 20 S.W. 261. In this case, if the property in question was damaged by the construction of the wall, some one had a right of action. If the purchaser of the property had brought suit to recover, the conclusive answer would have been that the property had been permanently damaged in its market...