Devon v. Cincinnati, C. & E. Ry. Co.

109 S.W. 361, 128 Ky. 768, 1908 Ky. LEXIS 97

Opinion

Opinion op the Court by

Judge Settle

Affirming.

Appellee is a railroad corporation created under the laws of Kentucky for the purpose of constructing and operating an electric railway from Covington to Erlanger and other points beyond, not exceeding 10 miles in distance, from Covington. Appellee’s articles of incorporation provide “* * * The undersigned have and do hereby associate themselves together to form an incorporated company, under the statutes of Kentucky, for the purpose of constructing a line of railway, as hereinafter stated. * * * Third. The business of said company shall be the construction, maintenance, and operation of a line of railway not exceeding ten miles long, with a single or double track, and with all the usual and convenient appendages and appurtenances thereunto belonging, including the right to erect, maintain and operate electric poles and wires over and along said railway and with the privilege of operating a line of telegraph or telephone on and over the line of said railway. Said railway is to be constructed and operated from the city of Covington, Kenton county, Kentucky, to the town of Erlanger in Kenton county, Kentucky, and to such further points beyond said town of Erlanger as may hereafter be determined upon, and over, along and upon such bridges, streets, roads, highways, and such private property, as said company may, by due process of law, acquire the right to lay its tracks and other appliances and appendages upon. Fourth. Said railway shall be ■■operated-by electricity or other improved methods of rapid transit.” In constructing its line of railway appellee found, it, necessary to cross upon and over a parcel of real estate owned by the appellant, and which is situated partly within and partly without the corporate limits' of the city of Covington. The land in question was unoccupied by buildings, and consisted mainly of a steep hillside, which rendered it practically, if not wholly, unfit for cultivation. Being unable to contract with appellant for a right of way for its railway line over this land, appellee in March, 1901, filed in the county court its petition asking the condemnation of such right of way as provided by section 835, Ky. St. 1903, following which commissioners were appointed by the court to view the premises and make and report the necessary assessment of damages to which appellant would be entitled by reason of the construction and operation of the railway upon her land. This duty was performed by the commissioners, whose report fixed her damages at $454.50. Appellant filed exceptions to the report, making objection to its confirmation on certain legal grounds, as well as on account of the smallness of the damages; and on the trial of the exceptions in the county court they were overruled, except as to the question of damages,theamount of which was increased from $454.50 to $575.00, and appellee adjudged entitled to occupy the ground condemned for the right of way, upon the payment by it to appellant or into court of the damages awarded. Appellee thereupon tendered the $575.00 damages to appellant, which she refused to accept. It was then paid into court, after which appellee began the construction of its railway bed and track over appellant’s land upon the right of way adjudged it, and in a short time commenced to operate and is now operating electric ears thereon as far as the cemetery, which lies about three miles out of Covington and on the way to Erlanger. Appellant, being dissatisfied with the judgment of the county court, prosecuted an appeal to the circuit court, and on the trial in that court the jury returned a verdict fixing her damages at $450. The court thereupon overruled appellant’s objections to the proceedings, and by the judgment rendered required her to accept the damages awarded, and confirmed appellee’s right to the land condemned for the use and operation of its railway line. The circuit court refused appellant a new trial; and from the judgment of that court she prosecutes this appeal.

It was contended by appellant both in the county and circuit courts, and she yet contends: (1) That no right or authority is* conferred by the statute upon electric railroads, street railways, or trolley lines to condemn land for the purpose of constructing roadbeds, laying tracks, or operating cars; that only steam railroads possess such right — therefore the county and circuit courts were without jurisdiction to entertain the proceeding whereby appellee obtained the right of way over her land; and that the judgment appealed from is in violation of that provision of the fourteenth' amendment to the federal Constitution which declares that the citizen cannot be deprived of his property without due process of law. (2) That appellee cannot in any event, by condemnation, obtain a right of way for its road over land lying within the corporate limits of the city of Covington. (3) That the circuit court admitted incompetent evidence on the trial.

As it is not denied that appellee was unable to contract with appellant for the right of way over her land, or that the land in question is necessary for the construction and operation of its railway, and no Gomplaint is made that the proceedings in the circuit court did not conform to the statute or that the damages allowed appellant are inadequate, it only remains to be determined whether appellee is a railroad that may condemn land for a right of way as provided by section 835, Ky. St. 1903. It will hardly be questioned that appellee’s articles of incorporation authorize it to construct and operate a railroad, and to that end to run over, along, and upon “such bridges, streets, roads, highways, and such private property as said company may, by due process of law, acquire the right to lay its tracks and other appliances and appendages upon.” While the term “railroad,” as used in section 835, Ky. St. 1903, has not been construed by this court, we' are clearly of opinion that the word “railway” has the same meaning. The words “railway, transfer, belt line,” and “railway bridge companies,” are used in sections 213, 214, 215, and 216 of the Constitution; and this court has held that the provisions of section 216 of the Constitution embrace street railroads as well as steam railroads. The language of that section is as follows: “All railway, transfer, belt lines, and railway bridge companies, shall allow the tracks of each other to unite, intersect and cross at any point where such anion, intersection, and crossing is reasonable or feasible.” In passing upon the question of whether a street railway in process of construction betwéen Ashland and Catlettsburg, a distance of four miles, should be allowed to cross a steam railroad at grade in Ashland as provided by section 216, Const., this court said: “It is urged, however, that the appellee (street railway) is not a railway company in the meaning of the section of the Constitution quoted. We think, whatever may be said of street railways in general, that the charter of this company puts it in the class indicated by that section. The railway was to connect two cities. It might use steam, horse, or other propelling power on said car route in the transportation of freight and passengers.” Elizabethtown, etc., R. R. Co. v. Ashland, etc., Street Ry. Co., 96 Ky. 347, 16 Ky. Law Rep. 42, 26 S. W. 181; Johnson’s Adm’r v. Louisville City Ry. Co., 10 Bush, 231; L. & N. R. R. Co. v. Bowling Green Ry. Co., 110 Ky. 788, 63 S. W. 4, 23 Ky. Law Rep. 274. The appellee railway, like the Ashland Railway Company mentioned in the case, supra, is of the class indicated by section 216 of the Constitution, as it is to connect two cities, may carry freight as well as passengers, and use steam instead of electricity, steam being one of the “improved methods of rapid transit.” While appellee’s cars pass through Covington to Cincinnati and return, its railway is not strictly speaking a street railway, but rather an interurban electric railway, which is, or may be, operated a distance of 10 miles from Covington and beyond Erlahger. As said in Zehren v. Milwaukee Electric Ry. Co., 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. Rep. 844; “A street railway in its inception is a purely urban institution. It is intended to facilitate travel in and about the city from one part of the municipality to another, and thus relieve the sidewalk of foot passengers and the roadway of vehicles. It is thus an aid to the exercise of the easement of passage— strictly a city convenience for the use of the city by people living or stopping thereon, and fully under the control of the municipal authorities who have been endowed with ample power for that purpose. * * * The urban railway has developed into the interurban railway, and threatens soon to develop (as in the ease at bar) into the interstate railway. The small car which took passengers at one corner and dropped them at another has become a large coach in size, and has become a part, perhaps, of a train, which sweeps across the country from one city to another, bearing its load of passengers ticketed through, with an occasional passenger picked up on the highways. The purely city purposes which the urban railway embraces have developed" into and are being supplanted by an entirely different purpose, namely, the transportation of passengers from city to city, over long distances and stretches of intervening country.

Ky. St. 1903, sec. 842a (Act March 11,1902, p. 39, c. 13), provides “All interurban electric railroad companies authorized' to construct a railroad ten or more miles in length, heretofore or hereafter incorporated under the general railroad laws of this Commonwealth shall be under the same duties and responsibilities, so far as practicable, and shall have the same rights, pow.ers and privileges as is now granted to or conferred upon railroad companies existing, operated or incorporated under existing laws of this Commonwealth, or under laws that may hereafter be enacted.” Appellee, being an electric interurban railroad, and authorized by its charter to construct and operate its line for a distance of 10 miles from the city of Codington, has the same right and powers under the section, supra, and section 835, Ky. St. 1903, to condemn land for a right of way that may be exercised by steam railroads; and the fact that the entire 10 miles of railway authorized by its charter has not yet been completed by. appellee does not affect the question; there being nothing in the record to show that it is not its purpose, in good faith, to complete the line as authorized. In Diebold v. Kentucky Traction Co., 117 Ky. 146, 25 Ky. Law Rep. 1275, 77 S. W. 674, 63 L. R. A. 637, 111 Am. St. Rep. 230, section 842a, Ky. St. 1903, was given the same construction we now place upon it.

It is contended by counsel for appellant that, as appellee’s articles of incorporation authorize it to run a railroad “from” Covington to Erlanger and points beyond, this means that land for the use of its railway lying within the corporate limits of the city of Covington cannot be condemned by it. We see no force in this contention, and no authority is cited in support of it. Manifestly a railroad charter which authorizes the railroad to connect two towns will also authorize it to run from a point within either town, and not limit it to the corporation line or boundary. The strained' construction contended for by appellant would tend to defeat the purpose of such a grant by making it inconvenient for the citizens of the town to use the road, and would be inconsistent with the provisions of the articles of incorporation which permit the road to run “over, along and upon bridges* streets, roads, highways,” etc. Clearly the meaning of the articles of incorporation .is that appellee’s railroad may, and was intended to, operate from a point within the city of Covington to a point within and beyond the city of Erlanger. Only a small portion of the land condemned in this case lies within the city of Covington, and such as there is seems to have been used for nothing but an entrance to a quarry long since abandoned. The Supreme Court of the United States in Union Pac. R. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428, in passing upon this question, declared that “authority to construct a railroad, or turnpike, from A. to B., or beginning at A. and running to-B., is held to confer authority to commence the road at some point within A. and to end it at some point within B.; the words ‘from,’ ‘to,’ and ‘at’ áre taken inclusively, according to the subject-matter.”

Objection is also made by appellant that in questioning witnesses as to the value of the land condemned for the use of appellee’s railway the court did not require that they be asked as to its market value; the word “value” in that connection being mainly used. We find no merit in this contention. Of course, the market value of the land was .the thing to be ascertained; and, while the word “value” was principally used by both counsel and witnesses with respect to the land; the term “market value” was also sometimes .used. We do not think the witnesses or jury were misled by the manner in which these questions were framed. There seems to have been no incompetent evidence presented to the jury, and the record as a whole discloses no error upon the part of the circuit court that can be said to have been prejudicial to appellant’s substantial rights.

Wherefore the judgment is affirmed.

Petition for rehearing by appellee overruled.