Ill. Cent. Ry. Co. v. Elliot

110 S.W. 817, 129 Ky. 121, 1908 Ky. LEXIS 144

• Court: Court of Appeals of Kentucky
• Decided: May 21, 1908
• Status: Published

Opinion

Opinion op the Court by

Judge Hobson —

Reversing.

Mrs. A. 0. Elliott is the owner of two lots in the town of Wickliffe, Ky., at the corner of Front and Court streets, on which she resides and conducts a hotel. Prior to the year 1904, the line of the railroad ran west of Mrs. Elliott’s house near the Mississippi river, which gradually encroached upon the railroad track; and, ff>avoid this trouble, the railroad company built a new line further from the river and between Mrs. Elliott’s house and the central part of the town of Wickliffe. The new line crosses both Front street and Court street, and also crosse's an alley back of her house, her land running back to the alley. This suit was brought by her to recover damages from the railroad company for the obstruction of Front street and the alley, and the injury to her property from the smoke and cinders thrown upon it and the noise incidental to the running of the railroad trains. The proof on the trial showed that in a straight line it was 230 feet from Mrs. Elliott’s house to the old line of the railroad and that it was 180 feet from her house to the new line. The situation is shown on the following plot:

There was proof introduced on the trial showing that, by reason of the smoke and cinders.and the noise of passing trains, Mrs. Elliott’s house was unsuited for a hotel, and had been depreciated in value something like $2,000 or $3,000 by the change of the road. The court instructed the jury as follows:

“(1) The court instructs the jury that if they believe from the evidence that defendant constructed a railroad in such proximity to the home of the plaintiff that the noise of defendant’s trains and the smoke and dirt that passes from defendant’s engines to plaintiff’s property renders her house less comfortable as a residence, and less valuable by reason thereof, or if you believe from the evidence that if defendant in constructing its road obstructed, stopped up, or destroyed a portion of Front or First street and a portion of the alley in the rear of plaintiff’s property, and that, by reason of such obstruction, stoppage, or destruction of said street or alley, plaintiff’s property has been damaged, then you will find for plaintiff such damages as you may believe she has sustained by either or both of the above causes, not exceeding the sum of $4,000, and in measuring such damages, if any, you will consider the value of her house and lot immediately before the defendant constructed its road and. began to operate over it, and the value of the same immediately thereafter, caused proximately by the two causes mentioned; that is to say, by any increase in dirt, noise, or smoke or by diminution in value of the property through the destruction of portion of Front street and of the alley in rear of said property.

, “(2) The court instructs the jury to find for the defendant unless the jury believes from the evidence that, by the change of the defendant’s railroad, it was placed nearer to the plaintiff’s property, and that there was increased noise and smoke thrown upon and around her property from what it had formerly been subjected to, and by reason of such increased noise and smoke her property was diminished in value. The law is for the defendant, and yon should so find, unless you may further believe from the evidence that the destruction of First street or the alley in the rear of plaintiff’s property was the proximate cause of the injury to plaintiff’s property, in which latter event you should find for plaintiff the difference in value, if any, between said property immediately before said street and alley were obstructed or destroyed and the value of same immediately afterward, and unless you believe the latter proposition or the one presented above the law is for defendant, and you should so find.

“ (3) The court instructs the jury that the defendant had the right to move its track from the west side to the east side of the plaintiff’s property, and the jury can not find any damages resulting to her property solely from the change of location of its railroad. ’ ’

A great deal of evidence was admitted on the trial as to the annoyance caused by the noise from the trains. One witness said that ‘ ‘ it seems like the train is running in at your window if you happen to wake up at night upstairs 'on the north side of the house. ’ ’ All the evidence as to the noise made by the trains should have been excluded, and the instruction should not have allowed any recovery on account of noise. The running of a railroad train is a lawful business carried on upon the owner’s own property. The noise is inseparable from the running of the trains. No amount of care can prevent it. Mrs. Elliott’s property does not adjoin the right of way, and, if she can maintain an action for this noise, every property owner in the town can maintain a like action, and so can all those along the right of way. That an abutting owner on a street can not recover for the noise made by the trains wa,s held in Cosby v. Owensboro R. R. Co., 10 Bush, 294; C. & O. R. R. v. Gross, 43 S. W. , 19 Ky. Law Rep. 1926; L. & N. R. R. Co. v. Kleymeier, 105 Ky. 609, 20 Ky. Law Rep. 1415, 49 S. W. 484; and in a number of other cases, this court, in defining what may be recovered for, has omitted noise from passing trains. See Railroad Co. v. Combs, 10 Bush, 392, 19 Am. Rep. 67; Henderson Belt R. Co. v. Dechamp, 95 Ky. 219, 24 S. W. 605, 16 Ky. Law Rep., 82; Willis v. K. & I. Bridge Co., 104 Ky., 186, 46 S. W. 488, 20 Ky. Law Rep. 475.

There was proof on the trial that the railroad made a cut across Front street and across the alley in the rear of Mrs. Elliott’s lot, thus entirely obstructing travel along Front street or along the alley. It is insisted that, as this obstruction of the alley and of Front street is at a point abutting the property of Mrs. Elliott, she cannot recover for it. There are authorities sustaining this view, but the rule in Kentucky is- otherwise. In Transylvania University v. Lexington, 3 B. Mon. 27, 38 Am. Dec. 173, the court-said: “Every owner of ground on any street in Lexington has a right, as inviolable" as it is indisputable, to the common and unobstructed use of the contiguous highway, so far as it paay be necessary for affording him certain incidental easements and services, and a convenient outlet to other streets. And of this right the Legislature .cannot deprive him, without his consent, or a just compensation in money. The extent of this appurtenant right, depending on circumstances, may not in a particular case be easily definable with mathematical precision. As far .as it exists, however, it partakes of the character of private property, and is therefore protected by the fundamental law as property. But it cannot, as to each proprietor of ground, be coextensive with all the streets and alleys of the city. As a private right, it must, like that of vicinage, be limited to its own nature and end; that is, chiefly by the necessity of convenient access to, and outlet from, the ground of each proprietor.” This ease was followed in Gargan v. Louisville, etc., R. R. Co., 89 Ky. 212, 15 Ky. Law Rep. 95, 12 S. W. 259, 6 L. R. A. 340; Bannon v. Rohmeiser, 90 Ky. 52, 13 S. W. 444, 11 Ky. Law Rep. 987, 29 Am. St. Rep. 355; Wickliffe v. Illinois Central R. R. Co., 108 S. W. 243, 32 Ky. Law Rep. 1159. As far as appears from the evidence, the obstructions in the street' and the alley are permanent, ánd, if the condition remains at the trial, the measure of damages for the obstruction will be the diminution in value of the property by reason of it. But the defendant has no right to obstruct the highway, and, if it shall remove the obstruction by putting in a proper crossing, the measure of damages will be the diminution in value of the use of Mrs. Elliott’s property during the time the obstruction was continued. L. & N. R. R. v. Carter, 76 S. W. 364, 25 Ky. Law Rep. 759; Id., 77 S. W. 719, 25 Ky. Law Rep. 1303.

It is also insisted that, as the railroad does not run along the street adjoining the plaintiff’s property, she cannot recover anything for the smoke and dirt thrown on her property by the trains. The contrary rule was laid down in Willis v. K. & I. Bridge Co., 104 Ky. 186, 20 Ky. Law Rep. 475, 46 S. W. 488, and in L. & N. R. R. Co. v. Walton, 67 S. W. 988, 24 Ky. Law Rep. 9. Where a railroad throws smoke and cinders upon the property of another, it is a trespass upon the property, and this is an injury to the property, for which, by the express mandate of the Constitution, compensation must be made. Section 242 of the Constitution provides: “Municipal or other corporations or individuals invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured or destroyed by them.” Under this provision, where private property is injured by a railroad corporation, it must make just compensation for the injury, and it cannot make any difference whether the railroad is upon a street in front of the property or elsewhere.

The defendant asked the court to instruct the jury that there could be no recovery for smoke or cinders carried upon the property by currents of wind. The instruction was refused, and of this it complains. Elizabethtown, etc., R. Co. v. Combs, 10 Bush, 392, 19 Am. Rep. 67, the court said: “And, if his houses are damaged by having smoke, soot, or fire from passing engines thrown or blown into or against them, he is entitled to recover for this also. ” In Henderson Belt Railway Company v. Dechamp, 95 Ky. 224, 24 S. W. 605, 14 Ky. Law Rep. 44, the circuit court instructed the jury that the railroad company was not responsible for smoke or cinders carried upon the property by currents of wind. There was a verdict for the plaintiff, and the railroad company appealed. The judgment was affirmed, but the only question before the court was whether the instruction was prejudicial to the railroad company. In the subsequent case of L. & N. R. R. Co. v. Kleymeier, 105 Ky. 612, 20 Ky. Law Rep. 1415, 49 S. W. 484, the judgment was reversed for other reasons, and, at the conclusion of the opinion, it was held that the instruction should have been given. But what the court had in mind was unusual currents of wind. The air is hardly ever still. Cinders and smoke will usually float off to one side of the railroad. This may be ordinarily expected, and the defendant should be responsible for sncb consequences as must be anticipated; but it is not responsible for the smoke or cinders carried to adjoining property by unusual currents of wind, and on another trial the court will so instruct the jury. ,

The court erred in telling the jury that the measure of damages was the difference in value of the property just before and just after the' road was constructed. By this measure of damages, the jury necessarily got into their minds that they should take into consideration the diminution in value of the plaintiff’s property by reason of the change in the location of the railroad. On another trial the court will tell the jury that, if the increased cinders, soot, or smoke or the obstruction of the street or the obstruction of the alley diminishes the value of the plaintiff’s property, then the measure of damages is the difference in value of the property with the cinders, and smoke and obstruction of the street and alley as they are and what it would be without the increased cinders, soot, or smoke or the obstruction of the street or alley. The court will, in lieu of the second instruction, on another trial tell the jury that, unless the plaintiff’s property has been diminished in value by reason of the increased cinders, soot, and smoke thrown from the trains upon the property or by reason of the obstruction of Front street or the alley in the rear of the property, they should find for the defendant.

Judgment reversed, and cause remanded for a new trial, and for further proceedings consistent herewith.