Southern Ry. Co. in Kentucky v. Hatchett

• Decision Date: 09 March 1917
• Citation: 192 S.W. 694,174 Ky. 463
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. HATCHETT ET AL.
• Court: Kentucky Court of Appeals

192 S.W. 694

174 Ky. 463

SOUTHERN RY. CO. IN KENTUCKY v. HATCHETT ET AL.

Court of Appeals of Kentucky.

March 9, 1917

Appeal from Circuit Court, Mercer County.

Action by W. B. Hatchett and others against the Southern Railway Company in Kentucky. Decree for complainants, and defendant appeals. Affirmed.

E. H Gaither, of Harrodsburg, and Humphrey, Middleton & Humphrey and Horace L. Walker, all of Louisville, for appellant.

T. L Edelen, of Frankfort, and J. F. Vanarsdale and C. E. Rankin both of Harrodsburg, for appellees.

MILLER J.

In this action by W. B. Hatchett, the Burgin Commercial Club, and certain citizens of Burgin, Mercer county, to enjoin the Southern Railway Company in Kentucky from discontinuing the operation of that portion of its road between Harrodsburg and Burgin, known as the Burgin branch, the circuit court granted the injunction. The railway company appeals.

Burgin is situated on the Cincinnati, New Orleans & Texas Pacific Railroad (formerly the Cincinnati Southern Railroad) 5.36 miles east of Harrodsburg. Formerly Vercamp was a small station on the railroad, about one mile south of Burgin. In 1876 the citizens of Harrodsburg constructed and subsequently operated a railroad from Harrodsburg to Vercamp. This road was known as the Southwestern Railroad.

By an act approved May 15, 1886 (Laws 1885-86, c. 1159), Mercer county was authorized to subscribe to the capital stock of the Louisville Southern Railroad Company, which was building a railroad from Louisville to Harrodsburg, and to pay therefor by issuing its negotiable coupon bonds, to run not more than 30 years, and bearing interest at a rate not exceeding 6 per cent. The act of 1886 further provided that the bonds of the county should not become a valid obligation until the railroad had been so completed through Mercer county that a train should have passed over the road; and, upon the establishment of that fact, the county was authorized to issue the bonds and receive the stock. And it was further provided that the subscription should not be binding upon the county unless the railroad should pass to or through the corporate limits of the town of Harrodsburg.

An election was held which authorized the county to make a subscription of $125,000, and the Louisville Southern Railroad was completed from Louisville to Harrodsburg. The Louisville Southern Railroad Company thereupon acquired, by purchase, the Southwestern Railroad, above referred to, which had been constructed by the citizens of Mercer county in 1876 between Harrodsburg and Vercamp.

When the Louisville Southern Railroad Company bought the Southwestern Railroad, it extended the track from Vercamp to Burgin, a distance of little more than a mile; and Burgin became and continued to remain the eastern terminus of the Louisville Southern Railroad so long as that system existed. By this purchase the Louisville Southern Railroad Company extended its line from Harrodsburg to Burgin; and, claiming that it had complied with the act of 1886 under which the county subscription had been made, by constructing its road through Mercer county, it demanded of the county its bonds in payment of the county's subscription. But as Burgin was a few miles west of the eastern line of Mercer county, the county refused to accept the completion of the road to Burgin as a compliance with the act of 1886, which required the railroad company to complete its road through Mercer county. After a protracted litigation in the federal courts, it was finally held that the Louisville Southern Railroad Company had complied substantially with the condition precedent to the issuance of the bonds, by building its road to Burgin, which was located upon the Cincinnati Southern Railroad, thus affording the citizens of the county as complete railroad facilities as they could have had if the railroad had been extended east of the Cincinnati Southern Railroad. See Mercer County v. Provident Life & Trust Co., 72 F. 623, 19 C.C.A. 44, and Provident Life & Trust Co. v. Mercer County, 170 U.S. 593, 18 S.Ct. 788, 42 L.Ed. 1156. The county bonds were thereupon delivered, and the railroad company received the benefit of them.

While this litigation was pending, and before the trustee had delivered the bonds, and while the discussion was going on as to whether the selection of Burgin as the eastern terminus was a compliance with the condition upon which the bonds were to be issued and the subscription completed, the Louisville Southern Railroad Company prepared to extend its road towards and to the city of Danville, in Boyle county, and with one exception had acquired all of the rights of way to the southern line of Mercer county. Provident Life & Trust Co. v. Mercer County, 170 U.S. 593, 18 S.Ct. 788, 42 L.Ed. 1156. But nothing further was done by the Louisville Southern Railroad Company towards extending the line to Danville.

In 1894, however, the appellant, the Southern Railway Company in Kentucky, a Kentucky corporation, bought the Louisville Southern Railroad, and has continued to the present time to operate the road from Louisville, through Harrodsburg, to Burgin.

In 1906 the Southern Railway Company extended its track from Harrodsburg southwardly 7.9 miles to Danville, leaving the old track between Harrodsburg and Burgin at a point 1.3 miles east of Harrodsburg, which, for purposes of identification, is called the "junction." There is at this junction, however, nothing more than a switch; it is not a station at which trains stop, except for the purpose of throwing the switch, when necessary.

Since 1906 the through trains of the Southern Railway have gone from Louisville through Lawrenceburg to Harrodsburg, and from Harrodsburg direct to Danville; the road from Harrodsburg to Burgin being operated as a branch road. About 1913 the track of the old Southwestern Railroad between Harrodsburg and Burgin was taken up and a new track was built by the appellant between those points. The accompanying plat will illustrate the situation as it now exists:

(Image Omitted)

It will be noticed that the distance from Harrodsburg along the main line to Burgin Junction is 1.3 miles; that the distance from Burgin Junction to Burgin is 4.6 miles; and from Burgin Junction to Danville 7.9 miles.

Subsection 1 of section 772a of the Kentucky Statutes reads as follows:

"That all corporations, companies, persons or associations owning and operating a railroad line in this commonwealth or any branch of any railroad in this commonwealth, the length of which exceeds five miles, shall be required and they are hereby directed, to run at least one passenger train each way on every day of the year, Sundays excepted, over said line: Provided, however, that the operation of a train known as a mixed train on lines carrying passengers and freight for hire, on which both passengers and freight are carried, if operated in accordance with the provisions of this act, shall be deemed a compliance therewith: Provided, further, that the provisions of this act shall not apply to mere coal switches or any switch or branch, which is chartered and used by any corporation, company or person merely for the purpose of carrying freight or coals to their main line or track."

The further provisions of this statute relate to penalties for its violation.

The questions presented in the argument are two: (1) Whether the length of what is called the Burgin branch is to be measured from Burgin to Burgin Junction, or from Burgin to Harrodsburg, this latter method being necessary in order for us to deal with a road five miles long, and thus bring the case within the provisions of the statute above quoted; and (2) whether a railroad company can be compelled to operate a branch line at a loss, when there is practically no public demand therefor.

Appellant frankly admits that it purposes to abandon the operation of the road between Burgin and Burgin Junction, and to remove the rails and cross-ties, unless it be restrained from doing so.

Counsel for the appellees devote little or no portion of their argument to the first proposition, evidently preferring to rest their case largely, if not entirely, upon the second proposition; but, as counsel for appellant earnestly present the first proposition, above stated, and seeks a decision of that question, we will pass upon it.

1. It is earnestly insisted by appellant that in applying the statute, supra, to the facts of this case, we must treat that portion of the road between the junction and Burgin as a branch of appellant's main line, and that it must be treated as if it were so operated between those two points, which are less than 5 miles apart.

Waiving the question as to whether a railroad company can make a portion of its original line a branch, by giving it that name, we do not think the branch should be measured between the junction and Burgin, for the reason that no trains make the junction the ending point of their journey. The trains that run over this branch road run between Harrodsburg to Burgin; they do not run from Burgin Junction to Burgin except as a part of the journey from Harrodsburg to Burgin. It is true that a train going from Harrodsburg to Burgin passes over the main line from Harrodsburg to the junction, a distance of 1.3 miles; but it is nevertheless true that in making the trip from Harrodsburg to Burgin, the fact that there is a switch at the junction in no way affects the character of the trip, or the fact that the train goes from Harrodsburg to Burgin, a distance of more than 5 miles. In other words, in determining what constitutes the branch road under operation, we should consider the character of the train service which the company furnishes over the branch road. All of appellant's south-bound...