Elizabethtown L. & B. S. R. R. v. Catlettsburg Water Co.

61 S.W. 47, 110 Ky. 175, 1901 Ky. LEXIS 75

• Court: Court of Appeals of Kentucky
• Decided: February 27, 1901
• Status: Published

Opinion

Opinion of the court by

JUDGE HOBSON

Avetbming.

Appellee owns a lot 60 by 120' feet on the bank of the Big Sandy river, upon which is its plant for furnishing the city of Gatlettsburg with water. On July 23, 1894, appellant filed its petition in the Boyd County Court to con-demn a triangular piece off of the southwest corner- of appellee’s lot, 55 feet by 25 feet, containing 687% square feet. Commissioners were appointed, who- on August 10th-returned a report assessing the value of the land taken at $1,283, and the damages to the- remainder of the tract at $3,521, making a total for the whole- of $4,804. Both parties filed exceptions to the report of the commissioners, and a trial was had in the county court before a jury, who returned' a verdict fixing the value of the land taken at .'$500, and the damages to the remainder at $4,500, making a total of $5,000. Appellant prosecuted an appeal from the county court to the circuit court, and the case was there again tried before a jury at the December term, 1895. This jury returned a verdict fixing the value of the land taken at $1,000, and the damages to the remainder of the tract of $6,636, making a total of $7,636. Judgment was entered in the circuit court pursuant to the verdict on January 2, 1896. Both parties excepted and prayed an appeal, but neither took an appeal until December 28, 1897, when the appellant sued out an appeal in this court. On January 5th following, appellee sued out a cross appeal.

In1 the judgment of the county court, after that part of it granting an appeal to the circuit court, and reciting that appellant had paid into court the amount of the judgment, and that the clerk was directed to hold it subject to the orders of the court, the following agreed stipulation was ■entered: “By consent of parties hereto the clerk of this court is directed to allow the defendant, the Catlettsburg Water Company, to withdraw the sum of $5,000 deposited with him, upon said Catlettsburg Water Company executing bond, with good surety, to be approved by the judge of this court, conditioned to hold same subject to the order of the court herein, and to the order of any court to which these proceedings may be carried by appeal, and if, upon ..a final determination of this proceeding upon appeal, the damages of the defendant should be adjudged to be less than said sum of $5,000, then it will refund to plaintiff the ■difference between said sum and the amount so adjudged.” Appellee executed bend pursuant to this order, and withdrew the money. The bond, after reciting the order made in the county court, reads as follows: “Now, we, the Catlettsburg Water Company, as principal, and W. A. Patton, William Seymour Edwards, and Thos. R. Brown, sureties, do hereby covenant to and with said Elizabethtown, Lexington & Big Sandy Railroad Company that the said Catlettsburg Water Company, now electing to withdraw said sum of five thousand dollars, as allowed to do by said judgment, will hold same subject to the order of the court in this action, and to the order of any court to which this proceeding may be carried by appeal, and if, upon a final determination of this proceeding upon appeal, the damages of the defendant, Catlettsburg Water Company, should be adjudged to be a less sum than said five thousand dollars so deposited, then and in that event the said (Catlettsburg Water Company, together with the said sureties, whose names are signed hereto, will refund and pay to the plaintiff, the Elizabethtown, Lexington & Big-Sandy Railroad Company, the difference between said sum of five thousand dollars and the final sum so adjudged on appeal, if any.”

In the circuit court, on October 16, 1895, appellant offered to file an amended petition in which it sought to condemn a smaller triangle off of appellee’s lot than that described in the original petition. The court refused to allow this amendment to be filed, and appellant earnestly complains of the action of the court in rejecting it. The case had been pending some time, the court has a large-discretion as to allowing amendments, and we are not prepared to say that the court abused a sound discretion in refusing an amendment so late in the progress of the cause that might materially affect the issue to be tried,, and necessitate a delay of the trial. And, from the whole Record, we are by no means satisfied that appellant was materially prejudiced by this ruling.

Appellant also insisted on the trial in the circuit court that appellee, having accepted the $5,000 under the agreed order above quoted, and executed the bond for its return so far as it might be in excess of the final sum adjudged it, was estopped in the circuit court to claim anything more than the $5,900. The statute required the case to be tried anew in the circuit court. This entitled appellee to a verdict at the hands of the jury in the circuit court without regard to the amount adjudged it in the county court. Its accepting the money under the agreed order and bond above referred to was not a waiver of this right. Such were clearly not the contemplation of the parties at the time, according to the evidence, and nothing short of an express waiver of an absolute right of this character could be sustained.

Appellant also insists earnestly that the court erred in permitting evidence to go to the jury as to the damages to the remainder of appellee's property from the- construction and operation of the railroad, and from obstruction of the ingress to the property, and the egress from it. This is the most important question in the case, as the court by its instruction allowed the jury to consider these matters in estimating the damages, and the verdict of the jury is plainly based on them in a large measure. While the authorities on the subject are not uniform, the weight of authority and -the better reason seem to sustain the ruling of the court below. The law abhors a multiplicity ■of actions. Our Civil Code of Practice is very liberal in its provisions as to the joinder of causes of action. The just compensation which our Constitution guarantees- to •appellee for the taking of its property must fairly include all those injuries to the remainder of its property growing out of the construction and operation of the road on the strip taken. Section 242 provides: “Municipal and other-corporations and individuals invested with the privilege of' taking private property for public use shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking or paid or secured at the election of such corporation or individual before such injury or destruction.” This subject was fully considered in Eaton v. Railroad Co., 51 N. H., 504, (12 Am. Rep., 147); Trowbridge v. Inhabitants of Town of Brookline, 144 Mass., 139, (10 N. E., 796), and Railroad Co. v. Miller, 132 U. S., 75, (10 Sup. Ct., 34), (33 L. Ed. 267); and the principles arinounced sustain Rand. Em. I)om., section 136: “Where a corporation condemns a part of a tract, it is compelled usually to compensate for pretty much all the effects of construction and operation which can be fairly said to lessen the value of the remainder.” All the elements of damage admitted in this case legitimately and naturally result from the construction and operation of the railroad on- the location in contest, and it would be practically impossible to separate the damages,, and say which might have ensued if no part of appellee’s lot had been taken, and the right of way had been located just beyond its borders. It was not contemplated by either the Constitution or statute under which the proceedings were had that the injury should be cut in two, and part of it recovered in the proceedings to condemn the-property, and part in a separate action.

These are the only errors relied on by the appellant,, and we are therefore of opinion, on the original appeal, that there is no error in the judgment complained of. On. the cross appeal it is insisted that appellant is without authority to condemn property under the statute, as it had. leased its roadi to another company for 250 years; that the land taken is not necessary for its purposes; and that, being already dedicated to.public use, it can not be condemned, where to do so will destroy the. public use to which it is already dedicated.

The cross appeal was not taken within two years after judgment was rendered, and it is insisted for appellant that it can not, therefore, be considered. Counsel rely on Brown v. Vancleave, 86 Ky., 381, (6 S. W., 25), and Chamberlain v. Berry’s Ex’r (Ky.) 56 S. W., 659, as sustaining this conclusion. In Brown v. Vancleave it was held that the judgment from which the cross appeal was taken was not the same as that from which the original appeal was taken, and therefore that the cross appeal did not lie. In that case it was also held that, as the cross .appeal was not taken within two years after the judgment it sought to reverse was entered, it could not be sustained as an original appeal, and it was therefore dismissed'. In Chamberlain v. Berry’s Ex’r the chancellor’s judgment was affirmed on the original .and cross appeals on the facts, and no ruling was made on the motion to dismiss the cross appeal. The question before us is therefore not determined by either of these cases. Section 755 of the Code of Practice provides: “The appellee may obtain a ■cross-appeal at any time before trial by an entry on the record of the court of appeals.” A cross appeal can not be obtained until the original appeal is taken, and, by the express words of the statute, may be taken thereafter “at any time before the trial.” Section 745 limits the time of appeals to two years after the right of appeal first accrues, but this section applies to original appeals. It can not apply to a cross appeal, for that can not be taken before the original appeal is had. The clear purpose of the statute was to give this court entire control of the merits of the case where an appeal was- taken and the appellee sued out a cross appeal. The motion to dismiss the cross appeal is therefore overruled.

It is also insisted for appellant that appellee is estopped to raise the questions above stated by reason of its accepting the- $5,000 under the agreed order, and allowing appellant to go on and take possession of the strip condemned, and proceed with the building of its bridge, at a cost of something like $400,000. The proof shows that no writ of possession was issued from the county court, but that, after the agreed order was made, appellee itself re moved its building from this part of the lot, and suffered appellant to take possession of it, and without objection, proceed to the building of its bridge at great cost. The transaction does not seem capable of any other construction than that appellee agreed to take the money and let appellant take the property, and that the sole question to be tried on the appeal in the circuit court was the amount appellee was entitled to. Appellee not only did not appeal from the judgment of the county court, but it suffered appellant, without any process, and plainly by its agreement, to take possession of the property for the purpose of building its bridge upon it. It can not, therefore, raise any questions as to the right of appellant to condemn the property. The judgment complained of is therefore affirmed on the original and the cross appeals.