The Lexington & Ohio Rail Road Co. v. Applegate

• Decision Date: 17 June 1839
• Citation: 38 Ky. 289
• Parties: The Lexington & Ohio Rail Road Company v. Applegate and Others.
• Court: Kentucky Court of Appeals

38 Ky. 289

The Lexington & Ohio Rail Road Company v. Applegate and Others.

Court of Appeals of Kentucky.

June 17, 1839

FROM THE LOUISVILLE CHANCERY COUNTY.

Mr Guthrie and Mr. J. T. Morehead for the appellants.

Mr Crittenden and Mr. Pirtle for the appellees.

OPINION

ROBERTSON CHIEF JUSTICE:

This appeal brings up for revision a decree of the Chancellor of the city of Louisville, perpetually enjoining the Lexington and Ohio Rail Road Company " from running, using or employing their cars and carriage, by steam or otherwise upon their rail road along Main street between Thirteenth street and Sixth street," in the said city.

The decree--to be revised; by which the Louisville ch'r injoined the Railroad co. from running or using cars or carriages on a part of Main st. in that city.

The incorporation of the co.--with power to locate and construct a railroad; the completion and use of some parts of it; and particularly of a portion extending from Portland through Main st. to 6th st. in the city of Louisville; located constructed and used with steam cars, & c. in conformity to a privilege granted by the mayor and council of the city.

By an act of the Kentucky Legislature, approved in 1830, " the Lexington and Ohio Rail Road Company" was incorporated--with authority to construct a rail road from Lexington, to " some one or more points on the Ohio river; " and to use any land and materials, necessary for that purpose, by obtaining the consent of the owner, or by paying the value thereof, to be assessed upon a writ of ad quod damnum ; and " to place on the road, when constructed, all machines, wagons, vehicles or carriages which they may deem necessary and proper for the purpose of transportation; " and, also, to exact a prescribed toll for transportation of persons and property on the rail road.

Having determined to make a point on the Ohio river, at or near the city of Louisville, the terminus, the company located its rail road from Lexington to Louisville, constructed it as far as Frankfort, and partially graded it between Louisville and Frankfort; and, desiring to extend the road, through Louisville, to the Ohio river, below " the falls," it obtained a supplemental act, in 1833, authorizing such extension.

Under the authority of these enactments, the company, with the concurrence of the Mayor and Council of Louisville, extended the location of its road, within that city, to a designated point in Jefferson street; and, having afterwards obtained the consent of the Mayor and Council, to the construction of the road from Portland, below " the falls," to Thirteenth street; thence along Main street, to Sixth cross street, and thence to the wharf; with permission " to run its cars by steam, at the rate of not more than six miles an hour, between Sixth and Thirteenth streets" --it constructed the road accordingly, from Portland to the intersection of Main street and Sixth cross street, in Louisville; and, from the 29th of April, 1838, until arrested by the Chancellor, on the 26th of October, 1838, it had used the rail road between those points, chiefly by transporting daily about five hundred and fifty passengers, in cars, propelled generally by steam, though sometimes drawn by horses, at the price of twelve and a half cents for each passenger, instead of the accustomed hack charges, which have generally been from twenty five cents to one dollar.

The injunction was granted on a bill filed by Elisha Applegate and forty three others, most of whom were either owners or occupants of property on Main street, between Sixth and Thirteenth cross streets; forty of whom were citizens of Louisville, and all of whom alleged that the rail road through the city, was a nuisance, purpresture and unlawful encroachment on their private rights of property.

Bill, by numerous complainants, chiefly owners of houses lots on Main st. alleging, that the road and the cars running upon it, are a nuisance, purpresture, & c.--with injunction, & c.

Answer of the co. denying the facts charged, (as above,) as grounds for the injunction.

Final decree perpetuating the injunction, upon grounds stated.

The rail road company, in its answer, denied most of the principal allegations of the bill, and insisted that the road had not operated as a nuisance, or an encroachment on private right.

Between the granting of the injunction and the final decree, twenty six depositions were taken and filed--ten for the complainants, and sixteen for the defendant. And, on the final hearing of the case, on the bill, answer and depositions, the Chancellor perpetuated the injunction, as originally granted, upon the following grounds, stated in the conclusion of a very copious and learned opinion, delivered when the first decretal order was made:--

" It seems to me that the jurisdiction of the Court to interfere by way of injunction, is clear according to established principles and precedents; that the case shows a common nuisance, by which the plaintiffs have special damage; a purpresture amounting to a nuisance; a disturbance of easements annexed by grant to private estates, and of privileges dedicated and secured by a public law of the general Assembly of Virginia, in the streets and town of Louisville; of a corporation abusing the powers arising out of the act of incorporation, thereby working serious injuries to the complainants; and finally of a disregard of private rights, of a character continuous, vexatious, and degenerating into a species of irreparable nuisance."

In addition to those already suggested, the following facts clearly appear: first--that, in 1781, Louisville--with its Main street and cross streets, from First to Twelfth, as now and ever since existing--was established by an act of Legislature of Virginia, vesting the legal title in trustees, and declaring that purchasers of lots should " have and enjoy all the rights, privileges and immunities which the freeholders and inhabitants of other towns in this State, not incorporated by charter, have, hold, and enjoy." Second-- that the lots, owned or occupied by the appellees on Main street, between Sixth and Thirteenth cross streets, had been purchased from the trustees, many years ago, and have been held by the purchasers and their alienees ever since. Third--that the most of the wholesale and heavy business in Louisville, is, and ever has been, done on Main street, between Sixth and Second cross streets; that the population between Sixth and Thirteenth streets, is comparatively thin; and that the business houses on that portion of Main street, are chiefly retail shops, groceries and coffee houses. Fourth--that the title and authority of the trustees of the town passed by the act of incorporation, to the Mayor and Council of the city of Louisville, subject to all then subsisting trusts, private rights and public obligation; and, fifth--that Main street is ninety feet wide; the rail road in the centre, with a single track; and the entire street, since the construction of this track has been used as a passway for all persons and vehicles, without objection by the railroad company, and without any assertion by it, of an exclusive right to use that portion of the centre of it which is covered by, and included within, its flat iron rails.

Recital of facts established in the case, and of facts and opinions as to which the witnesses differ.

But, as to the effect of the rail road, and of the use made of it by the company, there is much diversity in the opinions of witnesses who testified in behalf of the appellees and of those who deposed on the side of the appellant.

Some of the ten witnesses for the appellees expressed the opinion that, the rails of the rail road obstructed the free and convenient public use of Main street; some of them testified to facts conducing to show that the use made of the road by the company, and especially by the frequent transportation of passengers in a long train of cars, propelled by stream, alarmed horses, and endangered the security of persons passing on foot, on horses and in hacks and private carriages; and all of them averred that, in their opinions, the rail road, as constructed and used, had the effect of diminishing the value of real estate on Main street, between Sixth and Thirteenth, and of injuring the commercial and manufacturing business of those who resided there; and that, therefore, it was a public nuuisance, and an injurious encroachment on the private rights of the appellees and of many others.

On the other side--most of the sixteen witnesses for the appellant (and all of them who testified as to this point,) expressed the opinion that the rail road itself was no obstruction whatever to the safe, free and convenient public use of the entire street by all who might choose to use any portion of it; and they stated facts strongly conducing to that conclusion. All of them expressed the opinion, that the prosperity of Louisville and the public interest had been promoted by the use that had been mae of the rail road from Portland to Sixth cross street in the city, and would be still more advanced by the completion and use of the continuous line of rail road communication, according to the charter and the avowed purposes of the company. No one of them considered the use, as made, of the road, even with steam power, as being a nuisance, or as injuriously affecting the value of property, the productiveness of business, or security of persons on Main street between Sixth and Thirteenth, or elsewhere. Most of them were of the opinion that, as steam, when well regulated as a motive agent, may be more easily and promptly controlled than horse power, cars propelled by steam, with a velocity not exceeding six miles an hour, were more safe to the public than cars...