Tolle v. Owensboro, F. of R. & G.R.R. Co.

• Decision Date: 27 September 1901
• Citation: 111 Ky. 623,64 S.W. 455
• Parties: TOLLE et al. v. OWENSBORO, F. OF R. & G. R. R. CO. et al. BERRY et al. v. SAME. OWSLEY et al. v. SAME.
• Court: Kentucky Court of Appeals

64 S.W. 455

111 Ky. 623

TOLLE et al. v. OWENSBORO, F. OF R. & G. R. R. CO. et al.

BERRY et al. v. SAME.

OWSLEY et al. v. SAME. ^[1]

Court of Appeals of Kentucky.

September 27, 1901

Appeals from circuit court, Daviess county.

"To be officially reported."

Actions by Samuel R. Tolle and others against the Owensboro, Falls of Rough & Green River Railroad Company and others to enforce certain judgments. Judgment for defendants, and plaintiffs appeal. Affirmed.

Geo. W Jolly and J. A. Dean, for appellants.

Pirtle & Trabue, J. M. Dickinson, and Walker & Slack, for appellees.

BURNAM J.

The appeal in these consolidated actions is from a judgment of the Daviess circuit court sustaining demurrers to the petitions of the appellants, in which they sought to subject the corpus of the railroad in the hands of its present owners to the payment of certain judgments alleged to have been obtained against the former owner, the Owensboro, Falls of Rough & Green River Railroad, for having flooded certain lots belonging to them, adjacent to the railroad right of way, by the failure of the then owner to put in a culvert under an embankment constructed for the use of the railroad sufficiently large to carry off surface water, and for having by means of a ditch diverted from its natural course water which was discharged into the drain above the embankment. The appellees answered: That in July, 1892, the Owensboro, Falls of Rough & Green River Railroad Company mortgaged its railroad and all of its property to the Metropolitan Trust Company to secure the payment of certain bonds which were issued to raise money to pay for the construction of the road, and that the injuries complained of in the suit instituted by appellants in the Daviess circuit court against the Owensboro, Falls of Rough & Green River Railroad Company were temporary in their nature, and wholly due to the negligent construction of the road, and occurred long subsequent to the execution of the mortgage. That in 1893 the mortgagee instituted suit in the United States circuit court to enforce its mortgage, and asked for a sale of the road. That appellants intervened in that proceeding, and asserted the same claim for damages which they had previously set up in their suit in the Daviess circuit court, and sought the same relief, alleging that the overflow of their lots was due to the negligent, careless, and improper construction of the culvert. That the mortgagee answered in that proceeding controverting the allegation of fact and claim for lien. That in December, 1896, a decree was entered directing a sale of the entire property to satisfy the mortgage, subject to such liens of the interveners as might be finally adjudged prior to the mortgage, and only to the extent so finally adjudged and that the purchaser might litigate all such claims in that suit, and have all the rights in respect to such litigation which complainant or cross complainant might have. That the property was sold under the decree, and that appellants subsequently, on their own motion, dismissed their intervening petition in the United States court without prejudice. That the sale of the railroad property was confirmed, and deed made to the purchasers. That in January 1898, appellants, without making appellees parties, or asserting claim for a lien upon the railroad, renewed their suits in the Daviess circuit court against the Owensboro Falls of Rough & Green River Railroad Company, and a trial before a jury resulted in the judgments which are the basis of appellants' claim in this proceeding; and pleaded by way of defense to the claims of prior lien: First, that appellants are concluded by the judgment in the federal court; second, that the judgments sought to be enforced were for temporary injuries due...