McHugh v. Louisville Bridge Co.

• Decision Date: 06 December 1901
• Citation: 65 S.W. 456
• Parties: McHUGH v. LOUISVILLE BRIDGE CO. et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 456

McHUGH v. LOUISVILLE BRIDGE CO. et al. ^[1]

Court of Appeals of Kentucky.

December 6, 1901

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by Patrick McHugh against the Louisville Bridge Company and the Pennsylvania Company for an injunction. Judgment for defendants, and plaintiff appeals. Reversed.

Matt O'Doherty, for appellant.

C. H Gibson, for appellees.

WHITE J.

The appellant, Patrick McHugh, instituted this action September 13, 1891, seeking to enjoin appellees, Louisville Bridge Company and the Pennsylvania Company, from laying a second railroad track on Maple street, between Eleventh and Twelfth streets, it being alleged that appellees were engaged in moving the single track then on the street to one side, and laying a second track on the street, greatly damaging appellant's property abutting thereon, and injuring his right of ingress and egress, and by noises, dust, smoke soot, and cinders, and by jarring, greatly injuring his property. A temporary injunction was granted by the circuit judge upon application, but before the same was served on appellees the track was completed. It is alleged that this second track was being laid without authority of law, and without the consent of the city of Louisville. The only relief asked in the petition is for injunction. An amended petition was filed in 1893, which alleges that the track had been laid without authority, and before the service of the injunction, and then sets out various causes of damage to appellant's property. The prayer for this amendment is for a perpetual injunction and "for all other general and special, legal and equitable, relief." The answer contains a specific denial of each and every allegation of the petition, except that the second track had been put down. The case remained on the docket on petition and answer till in January, 1898, the proof of appellant was taken. This proof shows ownership of the lot by appellant, and shows that his property had been greatly damaged by the building of the second track; the railroad tracks being so near the sidewalk as to be dangerous to vehicles passing over the street. However, in the proof the damage is not estimated in dollars by any witness, nor was there an allegation of damage measured in dollars. There was no proof as to authority to lay the second track; no proof at all on that subject. Upon submission upon the pleadings and proof of appellant appellees having taken no proof, the preliminary injunction was dissolved, and the action was dismissed absolutely. From that judgment this appeal is prosecuted.

The facts, as they appear in the record, are that appellees having one track on this street, began Saturday night, in the night, to tear up the street with a large force of hands, and to move the track there to...