Klosterman v. Chesapeake & Ohio Ry. Co.

71 S.W. 6, 114 Ky. 426, 1902 Ky. LEXIS 171

• Court: Court of Appeals of Kentucky
• Decided: December 17, 1902
• Status: Published

Opinions

Opinion of the court by

JUDGE PAYNTER

— Reversing.

The former opinion of this court, delivered herein by Judge Hobson, is as follows:

“Frank A. Klosterman died on February 10, 1892, the owner of certain real estate in Covington, Kentucky. Appellants are his widow and children, six of the latter being infants. They filed this suit December 5, 1895, against the Chesapeake & Ohio Railway Company, the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company, and the Louisville & Nashville Railroad Company, to recover damages in the sum of $7,000 for alleged injuries to the real estate received by them from the decedent; the widow being executrix of his will, and guardian of his children, and as such joined also in the suit. Issue was joined upon the petition, and on final hearing the court gave the jury a peremptory instruction to find for the appellees.

“Appellants’ property is situated at the corner of Lewis and Craig streets. It has on it two brick houses. One is a three-story brick building, situated on the corner, and fronting on both streets. The first story is used as a storeroom for mercantile purposes; the second and third, as a residence. The other is a two-story dwelling fronting on Craig street. There is a small area or yard between the.two houses. The railroad tracks complained of run diagonally across Craig and Lewis streets at their intersection. The nearest rail is six and one half feet from the 'gutter curb. Inside of the gutter curb is a sidewalk six feet wide. Both ihe buildings extend out to the sidewalk, so that at the corner the three-story brick house is only about fourteen feet from the nearest rail of the railroad track, or about eleven and one half feet from the side of the -cars when passing. Craig and Lewis streets are each thirty feet wide, including the sidewalk on either side. The railroad at this point is a double track, and is used almost constantly day and night. Before the railroad was built, the property rented for forty-two dollars a month. Now it brings scarcely enough to pay taxes and insurance. The trains operated are many7 of them heavy freights, which jar and shake the houses to such an extent as to alarm the occupants and wake them at night. A large quantity of cinders and smoke is thrown into and upon the property sometimes filling the front rooms with smoke, and to such an extent that it is impracticable to keep the front windows open at all. Large quantities of cinders fall upon the roof and yard, burning the paint off the roof, causing it to rot, and unfitting the yard for such uses as the yard of a residence is designed for. The wall of the two-story building is settled. The noise, vibration and discomfort from smoke and cinders are such that only an undesirable class of tenants will rent the property for a residence, and the storeroom is not desirable for a business place. The tracks take up substantially the intersection of the streets, with the exception of six feet on each side, so as in a great degree to interfere with the ingress or egress of wagons and teams, from the fact that trains are passing so often day and night. There is' no doubt, under the evidence, that the property is desirably located, and was valuable before the construction of the railroad, and by reason of its construction has been largely unfitted for the purposes for which it was intended, and greatly depreciated in value. The railroad was constructed precisely as it is now in the year 1889, and, the action not having been filed within five years thereafter, the appellees interpose the plea of limitation, and it was on this ground that the court below gave the jury a peremptory instruction to find for appellees.

“In Railroad Co. v. Orr, 91 Ky., 109, 12 R., 756, 15 S. W., 8, this court held that a railroad must be regarded as a permanent structure, and, when its construction in the streets of a city is authorized by legislative and municipal authority, all damages naturally resulting from the proper operation of the rdad can then be ascertained and determined, and the cause of action therefor is barred by limitation after five years from the time the action might first have been instituted. This case has been followed in so many subsequent causes that the question is not now an open one, but we are not inclined to extend the rule beyond the limits’ thus laid down, or to apply it to a case where the construction of the railroad in the street is not authorized by legislative and municipal authority. As has been held by this court in several cases, and is recognized in section 242 of our present Constitution, the injury to property in cases of this character is substantially a taking of private property for public use, and, where this taking has not been done under proper authority of law, it should .stand, as to limitation, on the same plane as any other taking of real estate. The structure being permanent, the action is not for a trespass upon the property, in which damages within the preceding five years may be recovered; but the question to be determined is, what will be a fair compensation to the owner of the property for the depreciation of the value of his property by the servitude that is thus placed upon it? When the construction of the railroad is authorized by law, all persons must take notice of this; and there are sound reasons of public policy for not extending the bar of limitation to those cases where the construction is not by authority of law, and the citizen can not well understand his rights. It remains- therefore, to determine whether the tracks in question were constructed under proper legislative and municipal authority.

“On August 27, 1831, the council of the city of Covington granted to the Covington & Lexington Railroad permission to lay its road in Washington street. The Covington & Lexington Railroad was afterwards succeeded by the Kentucky Central Railroad, and on October 22, 18S5, the city council granted to it, its successors or assigns, permission to extend its track from its terminus to a point on or near the Ohio river, and ‘the right of way for a single track over such streets and alleys’ as might be best for said company to use. This grant was, in terms, limited' to ‘the right of way for a single track.’ On December 17, 1887, the Kentucky Central Railroad sold and assigned to the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company all of its rights, privileges and franchises under and by virtue of these ordinances, and it is insisted that it was justified in constructing the double track in controversy under this authority. But the original ordinance made in 1851 granted a right of way only on Washington street, and the ordinance of October 22, 1SS5, in express words, granted only a right of way for a single track. Where the authority is expressly limited to a single track, it can not by construction be enlarged, for this would be to violate the plain terms of the instrument. Unless, therefore, there was some other authority for building this double track, the case does not fall within the rule laid down in Railroad Co. v. Orr, above referred to.

“Appellees also rely on certain provisions of the charter of the bridge company, and certain sections of the municipal authorities of Covington. These will now be considered: The bridge company was incorporated by an act approved April 4, 1884, under the name of the Covington & Cincinnati Pier Bridge Company. By an act approved February 9, 1886, the name of the corporation was changed to the Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company. This act also contains the following-provision (1 Acts 1S85-6, pp. 840, 343): ‘Said corporation is hereby authorized and empowered to construct, maintain and operate railroad tracks with necessary turnouts and sidings upon the said bridge and the approach thereto.’ Section 3. ‘The said corporation shall also have power to ■construct a railway track with necessary turnouts and sideings upon, over, along or across any public streets, roads, alleys, avenues or through or over any blocks of ground between such streets for the purpose of making connection with the depots or railway tracks of any railroad in the city of Covington within such territorial limits as the city •council of said city shall prescribe.’ Section 4. ‘The said company shall construct and maintain tracks connecting its bridge with the Kentucky Central Railroad in such manner as to enable other railroads to connect their lines of railway with said tracks approaching ,said bridge. Connections made by any other railroad with such connecting tracks shall be so made as to admit other roads to connect therewith; and any railroad now existing or to be hereafter constructed' within the city of Covington shall have the right to connect its railway with said connecting tracks and shall have the right to use the same for the purpose of and to cross said bridge with its locomotives and cars, upon the payment of toll and upon the terms in this act expressed.’ Section 8. ‘The said company shall not have the power to acquire more than one right of way from any depot in Covington to its bridge and shall obtain no per¡mit or privilege from the city council of Covington for such right of way without first having given at least one week’s notice of its intention to make application therefor, which notice shall be- in writing and be served on the city clerk of said city, and said corporation shall also cause said notice to be published in some newspaper circulating in Covington at least seven days before the making of such application.’ Section 10. The corporation was also authorized! by section 6 of the charter to acquire, either by purchase or assignment, such right of way as any other company then possessed or held over or across any streets or blocks of ground in Covington. The only purchase it made was from the Kentucky Central Railroad, as above stated; and, as this was only a right of way for a single track, authority to construct and maintain the double tracks in question must depend upon a compliance on its part with the provisions above quoted from its charter. It was only authorized by the charter to construct its track within such territorial limits as the city council of the city should prescribe. Section 4. It had no power to acquire more than one right of way from any depot to its bridge, and could obtain no permit or privilege from the council without first giving a week’s notice by service on the clerk, and publication in a newspaper circulating in the city. Section 10. The record shows that at a meeting of the council on April 22, 1886, the bridge company presented a paper informing the council that it had located the approaches to its bridge from a certain square, running thence northwardly to the Ohio river, and requesting the council to approve the selection; the paper stating that due notice of the application had been given to the city clerk and by publication as required by law. The council thereupon referred the matter to its committee on railroads and bridges, to report, by ordinance or otherwise, when the company presented more specific location of their route. This, so far as the record shows, was never done, and no action was ever taken by the council on the application. The record also shows that at the same meeting of the council, on April 22, 1886, the Kentucky Ctentral Railroad reported to the council its location of its right of way under the ordinance of October 22, 1885, along the route now occupied by the tracks in controversy. The record further shows a prolonged struggle between the city authorities and the railroad companies about their rights of way, and on July 29, 1886, a majority and minority report were presented in regard to the granting of the right of way to the bridge company, but no action appears to have been taken on either report. After this the Kentucky Central deeded to the bridge company its right of way, and it is hard to escape the conclusion that the bridge company, to avoid the terms sought to be imposed upon it by the city, or for some other reasons, ceased to prosecute its application to the council, and undertook to get along under its purchase from the Kentucky Central. At least, the presumption must be, as it was only authorized to acquire one right of' way, and it did not follow up its application to the council, that this application was abandoned. The purpose of requiring notice to be given of the application was that those interested might resist it before the council, and, when this resistance was made with such effect that no action was taken on the application, the only reasonable conclusion is that the corporation made some other arrangement. It is also shown in the rec-cord that on December 22, 1886, an ordinance was passed allowing the Covington Short Route & Transfer Company to build a line from. Licking river to the Kentucky Central track, and that in the year 1889 several ordinances were passed requiring the erection of safety gates and the keeping of flagmen at different points along the tracks in controversy. It is contended for appellants that the council, in doing this, only protected the people of the city, and that such ordinances were not grants of right of way, but only police regulations to prevent the trains from running over people. However this may be, we do not think a grant by implication or acquiescence could be properly made by the city council under section 10 of the charter above quoted, for it contemplates that the persons interested shall have notice of the application, and an opportunity to resist it. To allow a grant to arise from the acquiescence of the council, without notice to those interested, as provided by the statute, would be to defeat its entire purpose.

“We are^ therefore of opinion that the construction and operation of the double tracks in front of appellants’ property was not under regular legislative and municipal authority. While there was authority to construct and operate a single track, a double track, running necessarily so close to the property, was a much more grievous burden; and we do not think the statute of limitation should bar any part of the injury done, for the reason that it is an entirety, and not separable. It would mean that after five years the city authorities and the persons interested, having acquiesced in the construction of the railroad, can not enjoin its operation or require its removal. Appellees; after the expenditures made by them, must be allowed to maintain and operate their road, but if, in so. doing, they take the prolperty of appellants, they must make them a fair compensation for the injury done. The road can not now be treated as an illegal structure, or its operation as a nuisance. All we hold is that limitation of five years does not protect appellees from liability for injury done appellants, as their road was not constructed under proper municipal authority.” .

The opinion so well states the facts in the case, the var rious legislative enactments, the proceedings of the common council of the city of Covington, and the conclusion as to the application of the doctrine of the Orr case, that it is incorporated in this opinion. The court recedes only from that part of the opinion where it is said, “We do not think the statute of limitation should bar any part of the injury dome, for the reason that it is an entirety, and not ■separable.” Under tbe doctrine of tbe Orr case, tbe five-year statute of limitation would have barred tbe appellants’ cause of action, bad tbe appellees constructed only a single track, because it was done under legislative and municipal authority. The appellees did not bave municipal authority to construct tbe additional track. Tbe mere fact that it was constructed at tbe same time that tbe authorized one was could not make it a lawfully constructed track. It was as much an additional servitude upon the street, and injury to the property of appellants, as it would bave been, bad it been constructed anterior or subsequent to tbe construction of tbe authorized track. Tbe effect upon tbe rights of tbe appellants was just tbe same whether tbe authorized! track was constructed prior to, at tbe same time, or subsequent to tbe construction of tbe authorized one. Tbe time of tbe construction could not affect in any way tbe application of tbe statute of limitations to the rights of appellants. When tbe authorized track was constructed, under the Orr case, tbe five-year statute of limitation began to run. When tbe unauthorized one was constructed, and damaged the property of tbe appellants, it was an unlawful taking of their property, and tbe fifteen-year statute of limitation applies. As tbe appellee bad tbe right to maintain one track under legislative and municipal authority, did it forfeit tbe right to bave tbe five-year statute of limitation apply to appellants’ cause of action for injury and damages ■resulting from its prudent operation? Upon reconsideration, we bave concluded that it has not lost it. Its unauthorized act could not change tbe application of tbe law ■of limitation to a cause of action existing independent of such act. It could no more do so, than tbe doing of tbe lawful act could change tbe application of another statute of limitation to the cause of action growing out of tbe unauthoriz/ed act. The construction of two tracks created an ¡additional servitude upon the narrow street, and the operation of trains over both of them necessarily added to the damages to appellants’ property. While the construction and operation of the two tracks makes it more difficult to determine the damage resulting to the appellants, than it would if only one had been constructed and operated, still that difficulty, which has been created by appellees, should not be interposed as a barrier to appellants’ right to have redress for their wrongs. The damage for which they are entitled to recover from appellees is for constructing and maintaining two tracks instead of one. Whatever damages the appellants sustained by reason of the construction and operation of two tracks, which they would not have sustained by the construction and prudent operation of one track, is the amount of damages appellants are entitled to recover. This we believe to be the correct rule for the measurement of the damages they have sustained, and for which their right to> recover is not barred by the statute of limitation.

The judgment is reversed for proceedings consistent with this opinion.