York v. Chesapeake & O. Ry. Co.
Decision Date | 12 June 1931 |
Citation | 41 S.W.2d 668,240 Ky. 114 |
Parties | YORK et al. v. CHESAPEAKE & O. RY. CO. et al. |
Court | Kentucky Court of Appeals |
Rehearing Denied Sept. 29, 1931.
Appeal from Circuit Court, Boyd County.
Action by J. M. York and others against the Chesapeake & Ohio Railway Company and others. From a judgment dismissing the petition, plaintiffs appeal.
Affirmed.
W. D O'Neal, of Catlettsburg, for appellants.
Browning & Davis, of Ashland, for appellees.
On March 13, 1929, the board of council of the city of Catlettsburg adopted two ordinances granting certain rights privileges, and franchises to the Chesapeake & Ohio Railway Company, and providing for the opening, closing, and alteration of certain streets in the city. The appellee's line of railway extends through the city of Catlettsburg from the point where it crosses the Big Sandy river on the east to the boundary line between the cities of Catlettsburg and Ashland on the west. The greater part of the city of Catlettsburg, including the business district, lies north of the railway company's right of way and between it and the Ohio river. Just south of the railroad are the river hills. At the base and on the slopes of these hills are a number of residences. Probably 600 or 700 people live south of the railroad.
Prior to March 13, 1929, the railroad crossed at grade a number of streets and alleys extending from the hills on the south toward the Ohio river on the north. Many of these grade crossings were dangerous, and during the past several years a great number of accidents had occurred at the crossings resulting in a number of deaths. The most important streets crossed by the railroad, which was double tracked, were Center street, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fifth, and Twenty-Eighth streets. The Center street crossing was on a heavily traveled transcontinental highway known as the Midland Trail, or U.S. 60. In addition to the hazardous character of the grade crossings, they were particularly objectionable because of delays to traffic occasioned by the frequent passing of long heavily loaded freight trains. The railway company was hampered in the prompt dispatch through the city of its trains because of unnecessary curves and grades and lack of requisite trackage.
For the purpose of remedying these conditions, costly and inconvenient both to the public and itself, the railway company in the early part of 1929 submitted a plan to the city by which it proposed to acquire additional rights of way sufficient for the construction of four tracks and for the elimination of curves and grades, provided various grade crossings should be closed in return for the construction by the railway company of certain undergrade crossings. Numerous public meetings were held at which the plan was discussed and objections by the city officials and citizens were considered. The plan was modified and changed from time to time, ultimately resulting in the one approved in the ordinances above referred to. The ordinances, in substance, granted the railway company the right to maintain and operate a four-track line of railway through the city of Catlettsburg along the route designated by the company and provided that various grade crossings should be closed. In return the railway company was required to construct an undergrade crossing for the street railroad and vehicular and pedestrian travel at the Center street crossing in place of the existing grade crossing, a pedestrian and vehicular undergrade crossing immediately east of Twenty-Third street, and pedestrian underpasses at Twenty-First, Twenty-Fifth, and Twenty-Eighth streets. There was then in existence an undergrade crossing at Louisa street just east of Thirtieth street. The railway company was also required to construct approximately 5,000 feet of new concrete streets and resurface approximately 1,800 feet of Broadway, a street paralleling the railroad on the north, and to make other improvements and changes. The principal street it was required to construct was a new street immediately south of and parallel to its right of way and extending from Twenty-First street on the west to Louisa street undergrade crossing on the east. This gives the territory south of the railroad a through east and west street, which it had not theretofore had, and affords to the residents of that territory access to the safe undergrade crossings at Louisa street and Twenty-Third street. A few of the residents of this territory are compelled to travel a slightly greater distance in order to reach the business district of the city, but any disadvantage in this respect is offset by the advantages resulting from the improved streets and the safety of the undergrade crossings.
On May 8, 1929, J. M. York and Jerenka York, citizens and taxpayers of the city of Catlettsburg, brought this action against the Chesapeake & Ohio Railway Company, the mayor and members of the city council, and the city, to have the ordinances of March 13, 1929, declared void and to enjoin permanently the closing of the streets named therein. Subsequently the name of Jerenka York, on her motion, was stricken from the petition. Later W. A. Patton and seven other citizens filed an intervening petition, and they were made parties plaintiff. The intervening petition was filed on February 22, 1930, after the work had been completed, and a mandatory injunction against the railway company and its codefendants was prayed for, requiring the defendants to remove the fills and obstructions from the streets at the crossings described in the petition and to restore these streets to their level and grade that existed at the time of the filing of the original petition.
When the suit was filed, the railway company had spent approximately $500,000 in the purchase of rights of way and other preliminary work. No bond was executed, and no temporary injunction was sought. The work was substantially completed during the year 1929 at a cost to the railway company of approximately $1,500,000. The petition, as later amended, alleged, in substance, that the closing of the streets, the construction of the underpasses, and other changes authorized and provided for in the ordinances in question would be detrimental and inconvenient to the citizens and taxpayers of the city of Catlettsburg, and that the purchase of real estate...
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