Dulaney v. Louisville & Nashville R. R.

JUDGE HAZELRIGG delivebed the opinion or the coubt. In 1882, the general council of the city of Louisville adopted an ordinance permitting the appellee, the ■Chesapeake, Ohio and South Western Railroad Company to construct and operate a railroad, with single or double track, along and over “A” street, through the city limits, and provided that all other railroads so desiring might use such tracks upon making proper arrangements therefor with that company. Thereupon the Louisville & Nashville Railroad Co. under a contract with the C., O. & S. W. Co. was about to construct such tracks when the two companies were sued and ■sought to be enjoined by Dulaney, Downs & Marks, joint owners of lots abutting on “A” street, and who set up that the council had no power to adopt the ordinance; that the construction of the tracks and operation of the road would greatly impair the value of their property and would interfere with the reasonable use of the street. The case was at once prepared, and on final hearing in March, 1883, the chancellor handed down an elaborate opinion, signed officially and made part of the record by an order in which the relief asked was denied. Legislative authority for the ordinance was held to exist, and, moreover, if no such authority in fact existed, it was held that the construction and — 635 — operation of the road would be a public nuisance, to be abated by the public authorities unless private rights were invaded, which state of case did ont exist in the opinion of the chancellor. This ended the litigation, as the plaintiffs determined to prosecute no appeal. According to Dulaney’s statement they abandoned the fight. The track was, thereafter, laid on the street, and was there and in use in 1887, when appellants, Norton & Erdman, bought lots abutting thereon, Erdman buying wholly from Dulaney, and Norton buying in large part from him. In 1893, it was discovered that no formal entry of an order dismissing the petition of Dulaney, Downs & Marks had been made in accordance with the opinion of the chancellor in 1883. After notice to the attorneys of the plaintiffs in that suit, counsel for the railroad companies procured a nunc pro tunc order carrying into effect the opinion of 1S83. From that order an appeal is now being prosecuted with Dulaney’s consent for the benefit of his vendees, Norton & Erdman. This is the appeal first named above. The other appeals are from judgments against Erdman & Norton, who brought suits against the two railroad companies in 1893, seeking to enjoin them from the further use and occupancy of street “A,” and from laying a double track thereon, which it was alleged Avas about to be done. These actions met the same fate, though at the hands of a different chancellor, as the old Dulaney suit. Hence the appeals of Norton &• Erdman. Passing by for the present the contention of the — 636 — appellees that no appeal lies from the judgment in the Dulaney case, that the vendees of the plaintiffs in the old suit are bound by the old judgment, and that, in any event the laches and delay of the appellants, must deprive them of the right by injunction to thus, seriously affect the rights of the appellees acquired under the old judgment after the expenditure of large sums in constructing not only the tracks but the union depot at a cost of many thousand dollars, and which they allege and prove was built chiefly, if not solely, because of their supposed right to connect their southern with their eastern lines by the short route afforded by the street in dispute, we come at once to the controlling question in the cases, and that is what are the rights of the abutting owners in and to this public street? It is to be marked in the first place that the property involved is wholly unimproved and vacant. It is substantially out in the commons on the southern limits of the city, and, therefore, we are not called on to consider any alleged injury arising from the jarring of walls by passing trains, or damage from smoke or cinders. These questions are for the future and may never arise. At present they are purely speculative. Nevertheless, the street may not be so appropriated as to unreasonably obstruct or seriously impair the owner's usual mode of ingress or egress to and from the lots when they may be improved. It is upon the expected enjoyment of the right by the owner to freely use the street that the value of the abutting lots largely depends. — 637 — Tlie proof discloses, and tlie maps so show, that the street is to be sixty feet in width. What width the sidewalk may be when made is unknown, but from the proof and in the nature of things we should think eight feet would be ample. This would leave some thirteen or fourteen feet on either side of the double track for the usual travel, and would seem to be sufficient. When the conclusion is reached that no private right, such as we have indicated, is invaded, it is the contention of the appellees that the plaintiff’s case is' at an end, and that for any invasion of the rights of the public, or any encroachment on the public streets by any unauthorized entry on the possession of the public, the right to interfere and abate the nuisance is in the public authorities. And this contention we shall briefly examine. It is well settled in many of the states, though in some of them by statutory enactment, that the construction of a railroad, to be operated by steam on a public street, is a new servitude or burden on the use to which the street was originally dedicated; that, therefore, the abutting owner may resist such construction and occupancy until'-he shall receive adequate compensation for this new use. An exhaustive discussion of this question, with full compilation of the authorities, is found in the recent work of Elliott, on Railroads, section 1085, et seq. In Kentucky, however, tlie rule was settled other, wise, as far back as the Applegate case, decided in — 638 — 1854 (8 Dana, 301). It was there said: “But even though some persons owning property on the railroad street may be subjected to some inconvenience and even loss by the construction and use of the road, yet if the use made of the road be consistent with the purpose for which the street was established, and also consistent with the just rights of all, such persons have no right either to damages or to an injunction,” and the use of the street for such a purpose was recognized as entirely consistent with the purposes for which a street may be properly used. This doctrine was fully recognized and followed in Wolfe v. Cov. & Lex. R. R. Co., 15 B. M., 409; Lou. & Frank. R. R. Co. v. Brown, 17 B. M., 763, and Newport & Cincinnati Bridge Co. v. Foote, &c., 9 Bush, 264. In the case last cited it was said: “There is no rule of law which gives to the owners of property adjacent to an improvement consequential damages by reason of such improvement when constructed with skill and care, and in such manner as not to interfere with any private right, such as the right to light, air or passway, or by destroying the use or enjoyment of the buildings erected on adjacent land by leaving such a small intervening space between the building and the improvement as to prevent ingress and egress.” In Cosby, &c. v. Owensboro & Russellville R. R. Co., 10 Bush, 291, it was held to be a result of these well-settled principles that the construction and operation of a railroad through the streets of a city or town was not per se an encroachment upon the property rights of — 639 — abutting lot owners. “For if it was,” said the court, “it is plain that neither the municipal authorities nor the legislature, nor both could confer upon a railroad corporation any such right. It would be the taking of private property for public use without compensation, and, therefore, the grant would be violative of the constitution.” And it was further said that “private individuals seeking relief against a public nuisance must show that they suffer an injury distinct from that suffered by the general public, and that said injury is one that the public in the promotion of the general interest has not the right to inflict upon them without compensation.” In Fulton, &c. v. Short Route, &c., 85 Ky., 640, the cases were all reviewed, and it was announced as the settled law of the state that an abutting lot owner could not complain of the existence of the railroad on the public street fronting his property, but his complaint was confined to the manner of its construction and operation. See, also, Hyland v. Short Route Transfer Co., 10 Ky. Law Rep., 900, where this doctrine was said to be too well settled in this state to require the citation of authority. We have cited them, however, though hurriedly, because it is insisted by the appellants that the Cosby case is ihe only one which considered the question of the lot owner’s rights, without reference to whether or not there was legislative warrant for the construction of the railroad; and this may be true, but it follows, from the doctrine announced in all the cases, that gn encroachment on the street — 640 — without Avarrant is an entry on the possession of the public, and is a public nuisance, to be abated by the public authorities. Confessedly if such an entry was an invasion of a private right, hoAvever slight the interference, the legislature could not authorize it. The cases supposed to be in conflict with the Cosby •case are those in which the street was sought to be wholly appropriated, and where confessedly private rights were about to be invaded, or where the original use of the highway had been abandoned by the public .and the fee reverted to the owner. (Cornwall v. L. & N. R. R. Co., 87 Ky., 77; Ruttle v. City of Covington, 10 Ky. Law Rep., 766; Kreiger v. K. & I. B. Co., 93 Ky., 243; L. & N. R. R. Co. v. Hess, 92 Ky., 410; Green v. Asher, 10 Ky. Law Rep., 1006; Corey v. Lancaster, 81 Ky., 174.) . Certainly, in no case in this state has it been held to entitle an abutting owner on Aacant and unimproved lots to recover for not merely consequential damages, but those which are wholly speculative and uncertain. However, we are inclined to the opinion that there was legislative as well as municipal warrant for the occupancy of the street in controversy by the railroads. By the legislative act of 1873 (volume 1, acts 1873, pages 248-253), the Elizabethtown & Paducah Road, now the appellee, the Cf, O. & S. W., on entering the city of Louisville from the southwest was required to receive freight at East Louisville, and also at the depot at Second and Water streets, to be transported from either of those depots by way of the Louisville Railway Transfer Co. to the Elizabethtown & Paducah Com641 party’s line. A railway connection was thus required through the city, and it is conceded that the line along “A” street is the most direct and natural line of connection between the points indicated. It is true that the connection has not been extended beyond the L. & N. tracks to the C., O & S. W.’s line, but the authority to make the connection was clearly intended to be conferred; indeed it was required, and it has been so far made under the supervision and control of the C., O. & S. W. Moreover, the charter of the Louisville Railway Transfer Co. (the stock in which is alleged to.be owned by the L. & N. R. R. Co.) authorized that company to acquire the right of way, construct and operate any branch roads connecting with other railroads terminating at Louisville, or connecting therewith by bridge or ferry, “for the accommodation of the commercial and manufacturing business of the city of Louisville, said city consenting thereto,” and might condemn rights of way for such purpose, etc. We think it altogether consistent with the purpose in view in chartering this connecting road, for such was the sole object of its creation, to so construe the language of its charter as to give the right to make such connections as the business interests of the city demanded, using no line of connection, however, except with the consent of the city. If the present statutes (section 768, Kentucky Statutes) change the rule as to damages to abutting owners, as it seems to do, these cases are not affected thereby. — 642 — Upon the principles announced the judgments below dismissing the petitions are to be approved, but it is. proper to say that in the Dulaney appeal it seems clear to us that as all the parties to the old suit regarded the opinion of the chancellor as final and as the end of the litigation, the nunc pro tunc order was properly entered, and it was no longer possible, in 1893, to prosecute an appeal from the judgment of 1883. The Dulaney appeal is, therefore, dismissed. In the other cases the judgments are affirmed.