Stickley v. Chesapeake & O.R. Co.

• Decision Date: 29 September 1892
• Citation: 20 S.W. 261,93 Ky. 323
• Parties: Stickley et al. v. Chesapeake & O. Ry. Co. et al.
• Court: Kentucky Court of Appeals

20 S.W. 261

93 Ky. 323

Stickley et al. v. Chesapeake & O. Ry. Co. et al.

Court of Appeals of Kentucky.

September 29, 1892

Appeal from circuit court, Mason county.

"To be officially reported."

Action for damages by Harriet A. Stickley and others against the Maysville & Big Sandy Railroad Company and the Chesapeake &amp Ohio Railroad Company. Action dismissed as to the latter, and plaintiffs appeal. Reversed.

Pryor J.

The appellants, in the year 1887, owned a house and lot in the city of Maysville, located on Third and Poplar streets, and fronting on Third street. It is alleged in the petition that during the period these appellants owned the property the Maysville & Big Sandy Railroad Company constructed a double-track railroad on Third street, within six feet of the line of this lot, and to the edge of a narrow sidewalk in front of it; that, after the construction of the road, and while the appellants owned the property, the Chesapeake &amp Ohio Railroad Company took possession of the road under some arrangement with the Big Sandy Railroad Company, the terms of which are unknown to plaintiffs, and have been since operating the road, and now have the exclusive control of it. This action was instituted against both corporations to recover damages for obstructing the right of ingress and engress to and from this property, and also for an injury to the building, caused by the smoke and cinders thrown into the building by the passing cars. The appellants conveyed this property, prior to the bringing of the action, but were the owners when this wrong was committed by both defendants. A demurrer was sustained to the petition in so far as it claimed damages of the Chesapeake & Ohio Railroad Company upon the ground that the Maysville & Big Sandy Railroad Company is alone responsible, if any liability exists. The question arises as to the liability of the lessees from the original corporation for the damages resulting from the permanent injury to the building caused by the construction of the road, the lessee or last corporation using and operating the road while the appellants were the owners.

In the case of Railroad Co. v. Orr, (Ky.) reported in 15 S.W. 8, it was held that the statute of limitation might be pleaded against any claim for damages resulting from the necessary and prudent operation of the road, and that on a purchase by one corporation of another the purchaser was not liable for the torts of its vendor. In that case there was no state of fact showing that the right of ingress and egress to and from appellant's building had been interfered with; but here it is distinctly averred that the right of property has been invaded by both,-the vendor while it operated the road, and the vendee since its purchase or lease, in obtaining the right of entrance to this dwelling. It seems to us there can be no good reason assigned for relieving a vendee from all liability for an injury that amounts to an invasion of another's property while his possession is based upon no other title, than a tortious entry by his vendor. The act of the vendor in appropriating the property being wrongful, that of his lessee is equally so; and, while the lessee may not be liable for the mode of the original entry, he is nevertheless liable for appropriating this property to his own use. There is no question of limitation involved in this case. A railroad company who enters upon and appropriates the land of another to its own use, without right, cannot transfer its corporate privileges to another, so as to justify a continuance of the wrong in its vendee, as if the latter was an innocent purchaser. It is a taking, in both instances without compensation being personally made to the owner. It seems to us, however, there is a manifest distinction between a tort committed by the corporation in the careless operation of the road, in so far as it affects its vendee, and a case where the property of the owner has been wrongfully...