L. & N. R. Co. v. Walton, Rockcastle, 1902

LOUISVILLE & N. R. CO. v. WALTON.

COURT OF APPEALS OF KENTUCKY

67 S.W. 988; 1902 Ky. LEXIS 362; 24 Ky. L. Rptr. 9

April 24, 1902, Decided

PRIOR HISTORY:  [**1] 

Appeal from circuit court, Rockcastle county.

Action by John H. Walton against the Louisville & Nashville Railroad Company to recover damages for injury to property. Judgment for plaintiff, and defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: J. W. Alcorn and Edward W. Hines, for appellant.

W. G. Welch, for appellee.

JUDGES: WHITE, J.

OPINION BY: WHITE

OPINION

 [*988]  WHITE, J. This action for damages was instituted by appellee to recover for injury to his house and lot in Livingstone, Ky., caused by the erection and maintenance of coal bins in front of appellee's lot, and for injury caused by the noise and cinders, soot, and smoke incident thereto. The appellant admits that the coal bins have been erected as alleged, but denies any damage to appellee's property. It denies liability for damage, even if there be in fact an actual injury  [*989]  to appellee's property. This denial of liability is on the ground that the coal bins are necessary for appellant to carry on its business. For a further defense it is pleaded that appellee is estopped from claiming damages because he saw the work of building the bins, and knew such was to be done, and the use to which it was to be put, without objection or effort to stop it. A demurrer was sustained to the answer presenting the last two questions, and a trial was had on the question of fact as to whether appellee had been damaged, which resulted in a verdict and judgment for $1,250; and, after appellant's reasons and motion for new trial had been overruled, this appeal is prosecuted.

We are of opinion there was no error in sustaining the demurrer to that paragraph of the answer that attempts to plead an estoppel. If this was an action for injunction, a plea setting out that appellee was estopped by reason of his standing by and seeing large sums of money expended on the improvement, so that an injunction would cause more injury to appellant than the bins would to appellee, might be a good plea. But in the case at bar it is doubtful if appellee could have enjoined the erection of the coal bins, as, according to the answer of appellant, they were absolutely necessary in order to supply its engines with fuel.

We are also of opinion that there was no error in sustaining the demurrer to that paragraph pleading the necessity of the bins at that point. Necessity for the protection of the business interests and traffic of a railroad may operate to defeat an injunction, but necessity for a structure is not damnum absque injuria. Railroad Co. v. Ingram (Ky.) 30 S. W. 8; Railroad Co. v. Combs, 10 Bush, 382, 19 Am. Rep. 67; Railroad Co. v. Esterle, 13 Bush, 677; Willis v. Bridge Co. (Ky.) 46 S. W. 488. In the first three cases the rule requiring compensation to be made is applied to an abutting property owner, and in the latter case the rule is extended so as to cover injuries done to any property owner. The only question presented, therefore, is as to the damage to appellee's property, if in fact there is any. This question of fact was submitted to the jury, and their verdict was for appellee.

Complaint is made of the instructions given. Counsel insists that the proper measure of damage was not given. The court very clearly and plainly instructed the jury there could be no recovery unless there was damage to the property, caused by the manner of the operation of the coal bins; that there could be no recovery for damage, if any, caused by trains passing on the track by appellee's house; and then, at the expense of repetition, told the jury that, if there was damage to the property by reason of the operation of the railroad and also by the operation of the coal bins, the damage caused by the railroad must not be considered. In our opinion, there was no error in this measure of damage. The jury were not even permitted to assess damages by reason of the coal bins being there, but were confined to the injury caused by the manner of operation. This is correct in principle. The case is analogous to that of a railway in a street, where there is permission from the municipality. The right exists to so locate the railroad, but compensation must be made to the property owner for damage suffered by reason of the operation. In view of the rule as to this recovery being in full of all damage caused by the reasonable, ordinary, and prudent operation of the bins, we are of the opinion that the verdict is not excessive according to the proof. The decided weight of the testimony is that appellee's property was worth, before the coal bins were built, some $2,000, and now not over $400 or $500; yet the jury awarded only $1,250 as damages.

The verdict is fully sustained by the evidence, and, as no error appears, the judgment is affirmed.