Watson v. Chesapeake & Ohio Railway Co.

• Decision Date: 13 March 1931
• Citation: 238 Ky. 31
• Parties: Watson v. Chesapeake & Ohio Railway Company.
• Court: United States State Supreme Court — District of Kentucky

238 Ky. 31

Watson v. Chesapeake & Ohio Railway Company.

Court of Appeals of Kentucky.

Decided March 13, 1931.

1. Eminent Domain. — Owner of property abutting on railroad alley could not complain of depreciation in market value resulting from removal of depot.

2. Eminent Domain. — Railroad building additional tracks in public alley would be responsible for resulting injury to reasonable ingress to or egress from abutting property.

3. Eminent Domain. — Railroad raising grade of tracks in public alley would be responsible for resulting injury to reasonable ingress to, or egress from, abutting property.

4. Railroads. — Railroad could not by grant from city get any greater right to public alley than city had.

5. Municipal Corporations. — City could not grant to railroad exclusive right to public alley.

6. Waters and Water Courses. — Railroad building additional tracks and raising grade of tracks in public alley would be responsible for resulting flood damage to abutting property.

7. Damages. — Owner of property abutting on public alley in which railroad laid additional tracks and raised existing tracks was required to take reasonable steps to avert or minimize damage.

8. Damages. — No instruction regarding owner's duty to minimize damages resulting from railroad's acts was required, where substantial sum would have been required to minimize damage.

9. Eminent Domain. — Measure of damage for railroad's building additional tracks and raising existing tracks in public alley would be difference, between market value of property before and after work was done.

Appeal from Boyd Circuit Court.

WOODS, STEWART, NICKELL & SMOOT for appellant.

BROWNING & REED for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

W.F. Watson has appealed from a judgment dismissing his petition wherein he sought a judgment against the Chesapeake & Ohio Railway Company for $10,000, which he alleges represents the diminution in the market value of his property because of the damage done to it by the railway company's recently changing the grade, number, and location of its tracks on Railroad alley in Ashland, Ky., and thereby casting more water on his property, and destroying in part the ingress to and egress therefrom.

Watson's property has a southern frontage of 100 feet on Central avenue, it runs back with, and on the east side abuts on, Thirteenth street, about 107 feet, and the north end of it fronts and abuts on Railroad alley 100 feet. Railroad alley is 50 feet wide, and in it the Chesapeake & Ohio Railway Company now has, and for practically half a century has had, its tracks.

Almost directly across Railroad alley from Watson's property the Chesapeake & Ohio formerly had its passenger station, and it then had its tracks so planked or covered that access to Watson's property was easily had. Watson's complaint is that about the year 1925 the Chesapeake & Ohio moved its depot about 300 feet westwardly, took up the planking on its tracks near Watson's property, ballasted its tracks on Railroad alley with broken stone, built one additional track in the alley, and raised the grade of its tracks to some extent. The Chesapeake & Ohio had the right to move its depot, and Watson cannot complain of any deprecation of the market value of his property resulting solely from such removal.

The Chesapeake & Ohio had the right under the proof to construct in a proper way such tracks in this alley as are necessary for its use, but not without responsibility for resulting injury to the reasonable ingress to or egress from abutting property. The court in its instructions erroneously failed to tell the jury that anything could be found for Watson on that account. We cannot approve the instruction given, because in effect the court told the jury the rights of the Chesapeake & Ohio in this alley were exclusive, which is not true. See Stein v. C. & O. Ry. Co., 132 Ky. 322, 116 S.W. 733.

Nor could the Chesapeake & Ohio escape responsibility if it so changed the grade of its tracks in this alley as to destroy or materially affect the reasonable ingress to or egress from Watson's property.

The correctness of what we have said here depends upon the nature and extent of the rights of the Chesapeake & Ohio in this alley, and in order to correctly determine that, we must consider the history thereof as disclosed in the evidence.

It is there recited that the city of Ashland was laid out in the year 1854 by W.W. Westbrook, an engineer of the Elizabethtown & Big Sandy Railroad Company. It is evident a plat of the town was then made, but no copy thereof can now be found. The city is laid out with great uniformity, all of the blocks are 300 feet square, with alleys running through the center of them parallel with the river. These alleys were uniformly 15 feet in width. Thus there was in each block a plot of ground north of the alley 300 feet one way by 142 1/2 feet the other which was divided into lots 142 1/2 feet deep and 50 feet in width, and a similar plot of ground south of the alley, which also was divided into lots 50 feet in width. The blocks between Carter avenue and Central avenue were not exceptions to this rule. The alley between and parallelling these two avenues was sometimes called "Railroad Alley" and sometimes called "Railway Alley," and the evidence shows that originally it, like all other alleys in the city, was 15 feet wide. At some time, and its seems that now, no one knows when, how, or why, "Railroad Alley" was widened by adding to it from the lots on the south of it, 35 feet, so that "Railroad Alley" became 50 feet in width, and the plots of ground south of "Railroad Alley" and between it and Central avenue, were reduced to a size of 300 feet by 107 1/2 feet, whereas they had formerly been 300 feet by 142 1/2 feet. This alley seems to have always been called either "Railway Alley" or "Railroad Alley," both when it was only 15 feet in width and afterwards when it was 50 feet in width, and was used by the public generally as one of the public ways or thoroughfares of the city. The evidence shows there were many business houses and residences constructed fronting on this alley. There was put in evidence an ordinance of the city...