Yates v. Big Sandy Ry. Co.

• Decision Date: 18 October 1905
• Citation: 89 S.W. 108
• Parties: YATES v. BIG SANDY RY. CO.
• Court: Kentucky Court of Appeals

89 S.W. 108

YATES v. BIG SANDY RY. CO.

Court of Appeals of Kentucky.

October 18, 1905

Appeal from Circuit Court, Johnson County.

"Not to be officially reported."

Action by Frank H. Yates against the Big Sandy Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

Vaughn Howes & Howes, for appellant.

T. J Kirk, for appellee.

NUNN J.

The appellant instituted this action for damages against the appellee on the 26th of September, 1904. He alleged in his petition, substantially, that he was the owner of 10 town lots, and described them by metes and bounds; that the appellee, in the construction of a line of railroad in that county, appropriated and built its roadbed and laid its track in the public highway upon which appellant's lots abutted; that after it appropriated the highway it constructed another public highway, much nearer to the front of each of his lots than the one it had appropriated; and that in the construction of the highway it "unlawfully wrongfully, needlessly, negligently, and carelessly put and placed an embankment of dirt and stone about four feet high in front of and parallel with the front of each of his lots and thereby impeded his ingress and egress, and damaged the vendible and salable value of each of his lots." He also alleged that he and James Turner purchased a tract of land jointly and laid it off into town lots, many of which they sold, and then divided the remainder equally between themselves; that the lots described in the petition were the lots set apart to him in the division; and that the legal title still remained in James Turner as trustee, but that he was the owner of them. The appellee filed a demurrer to this petition, which was sustained by the court. The appellant then filed an amended petition, in which he alleged, in substance, that this embankment of stone and dirt was unnecessarily constructed by the defendant (appellee). This amendment did not strengthen the petition, and we are unable to understand upon what idea the court sustained a demurrer to the original petition. In our opinion a cause of action was alleged therein. Appellee's counsel contends that the lower court was correct in sustaining the demurrer for the three following reasons: "(1) Because no damage is apparent to him, but a benefit shown; (2) because he has no legal title to said lot, and cause of action, if any, would lie in the legal title holder; (3) because he had no right of ingress and egress to said lots over or from the points where the county road was located by appellee."

The first proposition is not sound, because it is alleged in the petition, and facts are stated therein, which on the demurrer were admitted as true, that show apparent injury to the appellant, and there is not a fact stated therein showing any benefit to his property.

The second proposition is equally...