V. T. C. Lines, Inc. v. City of Harlan

• Decision Date: 22 November 1957
• Citation: 313 S.W.2d 573
• Parties: V. T. C. LINES, Inc., Appellant, v. CITY OF HARLAN, Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 573

313 S.W.2d 573

V. T. C. LINES, Inc., Appellant, v. CITY OF HARLAN, Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 22, 1957.

Rehearing Denied June 20, 1958.

J. B. Johnson, Harlan, Chat Chancellor, Frankfort, for appellant.

Ray O. Shehan, James S. Greene, Jr., Harlan, for appellee.

MOREMEN, Chief Justice.

Appellant, V. T. C. Lines, Inc., a common carrier of passengers for hire, has its bus station and garage located across the street from a swimming pool owned and operated as a recreational facility by the city of Harlan. Appellant filed complaint in the Harlan Circuit Court and alleged that for several days in the spring of 1953, the city cleaned its swimming pool by sandblasting it with the result that the emery dust used, settled in great quantities in and on the bus station and garage and caused damage to the working parts of the diesel engines which were used in the buses. It was explained that diesel engines do not have electrically operated ignition systems, that the motors are started by forcing air into the cylinders in large quantities so that the temperature of the air, because of the compression, becomes very hot and causes the fuel to ignite and the cylinders to fire. It was averred that the polluted air caused great wear and tear in the metal and moving parts of the automobile engines and destroyed their usefulness and life.

Appellee filed answer which set up, among other defenses, that the damages, if any, resulted from the exercise of a governmental function.

The city filed a motion for summary judgment and the court, being of the opinion that

'The ground for sustaining the motion for summary judgment is based on the proposition that the City being an arm of the state government and the acts complained of being in the nature of a governmental function and that the property claimed to have been injured being personal property and not such property that may have been condemned pursuant to section 242 of the Kentucky Constitution, the plaintiff has no cause of action against the City. Davis v. The City of Lebanon, 108 Ky. 688,'

dismissed appellant's complaint.

Appellant has based its right to recover upon § 242 of the Kentucky Constitution which reads:

'Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction * * *.'

This section, which did not appear in the Constitution of 1850, is an extension to municipalities, and others, of the limitations placed on a sovereign. It extends also to 'injuring or destroying,' while section 13 is confined solely to 'taking.' The constitutional protection against a 'taking' by the sovereign state is found in section 13 of the Constitution and reads, 'nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.'

We have found these sections to be self-executing and in cases where property has been appropriated, the owner, despite a lack of statutory authority, has been permitted to recover damages. A suit, which seeks to recover damages after land has been taken, has been termed 'a retroactive condemnation of land.' Department of Highways of Kentucky v. Jackson, 306 Ky. 14, 206 S.W.2d 73, 75. And, 'a condemnation [suit] in reverse.' Keck v. Hafley, Ky., 237 S.W.2d 527, 529.

The trial court has seemingly based judgment on the theory that personal property is not subject to condemnation under the Constitution. We do not find this to be a satisfactory basis for the ruling. In Superior Coal & Builders Supply Co. v. Board of Education of Dayton, Ky., 260 Ky. 84, 83 S.W.2d 875, 876, it was said:

'The Constitution was written to protect the citizens from the improper acts of the state, its arms and its officers; nor does it make any difference that a portion of the plaintiff's property was personal property, as sections 13 and 242, Ky.Const., apply to both real and personal property.'

The seriousness of the question here involved arises from the fact that there are several rights which stem from the principle that private rights must yield to the general public welfare.

To understand the various rights, we must remember that in the beginning the power of a sovereign was absolute and each ruler had complete ownership of all land and complete domination over the lives and property of his subjects to the extent that he could capriciously take either. The right of eminent domain is a vestige of that despotism and was attributed to the sovereign long before this commonwealth existed.

The constitutional provisions which we have quoted are in the nature of limitations rather than grants of right because they restrict the sovereign to taking only where reimbursement is made. We have also retained recognition of the ancient sovereign immunity which denied to citizens the right to recover for deliberate or negligent acts of the sovereign.

At the same time we have recognized that that which we call police power is a separate and valid authority of the state, the only difference being that eminent domain authorizes or permits taking without the consent of the owner upon compensation being paid to him, while police power authorizes regulation and destruction of property without compensation if it promotes the general welfare of the citizens. Polsgrove v. Moss, 154 Ky. 408, 157 S.W. 1133. This police power is harsh in execution and permits the destruction of private property in event of necessity, such as war. It is under this power that the government exercises its right of taxation.

The third theory, which our cases seem to entwine with the eminent domain and the police power theories, is that which relates to the immunity of a sovereign to answer for negligent acts committed by it, unless that immunity has been waived.

This immunity arises not in connection with eminent domain or police power, but from the primitive right, which absolute sovereigns had, to be free from the consequences of any act, and exists separate and apart from the other two theories.

All three of these subjects are based upon a primitive conception of sovereign immunity and each one, under our present development and softening of the law, should be considered distinctly. We should not borrow from the eminent domain theory of compensation for injury or damage and apply it to either of the other two premises.

It would then seem to be a simple thing to conclude that under § 242 a recovery may be had only when property is taken for a public use and then only in cases where the property itself is of the character which may be devoted to public use. This distinction was pointed out in T. B. Jones & Co. v. Ferro Concrete Construction Co., 154 Ky. 47, 156 S.W. 1060, 1062, where, in connection with § 242, it was said:

'In other words, the provision has reference to property taken under the power of eminent domain; it has no reference to property which was not taken and could not be taken under the power of eminent domain. It is not the purpose of the constitutional provision to make municipal corporations liable for all injuries to property inflicted by the negligence of their servants, irrespective of the fact that the corporation was in this work acting as an arm of the state government and discharging a governmental function.'

In subsequent cases this distinction is not too clear. In city of Louisville v. Hehemann, 161 Ky. 523, 171 S.W. 165, L.R.A.1915C, 747 it was held that a city, in maintaining a garbage dump in such condition that it was annoying and dangerous to the residents in the vicinity, was, under § 242, liable for injury to the property rights of a neighboring resident. In Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24, a recovery was allowed for damages to a neighboring home for injury to the property and for interference with its occupancy as a home by reason of the operation of a rock quarry by the county in connection with the construction and maintenance of its roads. Each of these cases apparently involves the maintenance of a nuisance, and a nuisance and an act of negligence are not always the same. But neither of these cases is predicated on the theory that private property was deliberately taken for public use and that the damage was incidental to the taking.

In Commonwealth v. Moore, Ky., 267 S.W.2d 531, 532, owners of property which...