Turner v. Louisville & N.R. Co.

• Decision Date: 30 November 1920
• Citation: 225 S.W. 1072,189 Ky. 714
• Parties: TURNER v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

225 S.W. 1072

189 Ky. 714

TURNER v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

November 30, 1920

Appeal from Circuit Court, Harlan County.

Action by John Turner against the Louisville & Nashville Railroad Company to recover damages for the alleged destruction of a private passway. Judgment for defendant, on plaintiff's refusal to plead further after his demurrer to the answer was overruled, and plaintiff appeals. Affirmed.

G. G Rawlings, of Harlan, for appellant.

Wm Low, of Pineville, J. T. Bowling, of Harlan, and Benjamin D Warfield, of Louisville, for appellee.

SETTLE J.

The appellant, John Turner, brought this action against the appellee, Louisville & Nashville Railroad Company in the Harlan circuit court, seeking the recovery of damages for the alleged destruction by it of a private passway claimed to have been used by him as a means of leaving and reaching his land and home; it being alleged in the petition that the passway was destroyed by appellee in constructing and grading its roadbed and right of way where it runs through his land. It appears from other averments of the petition, and is admitted by appellee, that the railroad referred to was originally constructed, owned, and operated by the Wasioto & Black Mountain Railroad Company, but was sold and conveyed by it to the Kentucky & Virginia Railroad Company, under which corporate name it is now operated, though owned and controlled by the appellee.

The answer of the appellee, after traversing the averments of the petition respecting appellant's right to the use of the passway and to the damages claimed, in a second paragraph alleged that its right of way, 100 feet in width through appellant's land, was obtained by the Wasioto & Black Mountain Railroad Company, by and through its condemnation under proceedings had in the Harlan county court and by the judgment of that court, as permitted by the state Constitution (sections 13, 242) and provided by Kentucky Statutes, §§ 835, 836-840, and also by that company's payment to appellant of the damages allowed him by the commissioners and judgment of the county court in such proceedings, all of which, in addition to being properly pleaded, was fully set forth in a deed, filed with and as a part of the answer, from a commissioner of the court's appointment, conveying the right of way through appellant's land in question to the Wasioto & Black Mountain Railroad Company.

It was also alleged in the answer that the passway, for the alleged destruction of which appellant sues in this case, was and is a part of and included in the ground constituting the right of way through the land of appellant, acquired by appellee's grantor, the Wasioto & Black Mountain Railroad Company, through its condemnation in the proceedings referred to, and consequent conveyance by the commissioner's deed executed to that company pursuant to the judgment of the Harlan county court; that after thus acquiring such right of way upon and through appellant's land, the Wasioto & Black Mountain Railroad Company constructed thereon its railroad bed, and upon same laid its track for the operation of its trains, and if, in so doing, it obstructed or destroyed any passway formerly used by appellant, or such passway was destroyed by any repairing of the roadbed or track by its successors in title, it or they had the right to so destroy it because of the inclusion of the passway in the right of way acquired for the railroad by its condemnation, the compensation adjudged and paid appellant therefor, and its conveyance by the deed referred to.

Appellant filed a general demurrer to the answer, which the trial court overruled; and, upon his refusal to plead further, the petition was dismissed. Electing to stand upon the demurrer, he has appealed from the judgment conforming to the rulings complained of.

As the facts pleaded by way of defense in the second paragraph of the appellee's answer are admitted by the appellant's demurrer, we must accept their truth; therefore the question to be determined is: Do they constitute such a defense as should defeat the recovery sought by the appellant? Manifestly, if, as the facts alleged clearly show, the passway in question was a part of the right of way through appellant's land condemned and conveyed for the use of the railroad, the presumption must be indulged that he was compensated for the taking of it by the Wasioto & Black Mountain Railroad Company's admitted payment to him of the damages awarded him by the judgment of the Harlan county court. Moreover, as the passway was thus acquired and paid for, it necessarily followed that the Wasioto & Black Mountain Railroad Company or its successors had the right to appropriate it to such use in the construction or repair of the railroad bed or in the...