Elizabethtown, Railroad v. Ashland, Street Railway Co. , 96 Ky. 347 ( 1894 )

JUDGE HAZELRIGG

delivered the opinion op the court.

We learn from the petition of the appellants that they are the owners and operators of a railroad running through the town of Ashland, Kentucky, and crossing what is now Winchester avenue, in that town, but which was the old Ashland and Catlettsburg turnpike road when the railroad was first constructed; that the appellee owns a street railway in Ashland, and under the authority of its charter is about to extend it to the town of Catlettsburg, some four miles distant, along the turnpike road named. To prevent this extension, or at least to prevent the appellee from crossing the railroad at grade on Winchester avenue, the appellants filed their petition and obtained an injunction. A demurrer thereto having been sustained, their injunction dissolved and petition dismissed, they have appealed.

The sole question is the sufficiency of the petition. After stating the facts indicated above, and averring their willingness that the appellee might pass over or nncler the railroad at or near the point desired in such manner as would be safe, and alleging its willingness even to contribute to the cost of such structure (overhead or underground), they continue thus : ‘ ‘ But, because as plaintiffs aver and charge, the crossing of said railroad at the point in question, at grade, in accordance with said plan, or any plan providing for a grade crossing, would be exceedingly dangerous, and would constantly expose to great risk and hazard passengers and property of the railroad and street railway company, and for these, as primary reasons, and for the further reason that the application and request of defendant to be so permitted to establish such crossing is not reasonable or feasible, the said application and request of defendant was not allowed, and was refused by plaintiff, Chesapeake and Ohio Railway Company.”

The plats and exhibits filed with the petition show the country to be level in the vicinity of the proposed intersection, and that along the railroad for thirteen hundred feet in one direction and for fifteen hundred feet in the other, the approach of a train can be seen; and we may observe that it may be on this account that the pleader has hesitated to aver in direct terms that the proposed intersection is not reasonable or feasible.

The section of the Constitution supposed to authorize the intersection, and apparently sought to be circumvented by this pleading, is that “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 snch union, intersection and crossing is reasonable or feasible.” (Sec. 216, Const.)

The petition shows evidence of careful preparation, and we are not inclined to attribute the adroit indirectness of these averments to accident by which merely the reasons controlling the refusal of the appellants to permit the intersection are set out in this argumentative form. It is to be inferred that the appellants were unable to say that the grade crossing or intersection was not feasible or reasonable. Indeed, such an averment would have been contradicted by their own exhibits on file with the qietition.

Under the section quoted, we think that the appellee had the right to project its street railway along this avenue and street and across the railroad at grade. But the question is made that it can not do so without compensating the latter for an alleged deprivation or spoliation of its property rights at the point of intersection, and again we turn to the petition to ascertain the basis of this claim, the question being what property rights have the appellants on the turnpike in question of an exclusive character?

The averment is that the “Elizabethtown, Lexington and Big Sandy Railroad Company acquired by purchase and by donation or grant, prior to November, 1880, the land and ways on which it theretofore constructed its said line of road from West Ashland to the Big Sandy river, and has since, by itself or lessees, maintained and operated same, and is now by its said lessees in exclusive use and possession of ihe said line.”

We are thus left to conjecture how the right was obtained to pass over this turnpike, then a highway. We infer it was by the permission of those controlling the road. The right was confessedly a “donation.” In the nature of things it was but a permit to cross, sanctioned by legislative authority, and, therefore, a right to cross, but it was not exclusive of the rights-of the public. Nor can we suppose it to have been exclusive of such uses and purposes as those for which public highways and streets are established,, and among these uses are the establishment and operation of street railways. (Lou. Bagging Manf’g Co. v. Cen. Pass. Ry. Co., 95 Ky., 50.)

Even if this use imposed an additional servitude on the lands of the turnpike company, it does not affect the right of the appellants to cross this highway or street, and they have nothing of which to complain. That company and its vendees, the county of Boyd, are not complaining. In considering'; a similar question in the case of the Brooklyn Central & Jamaica R. Co. v. The Brooklyn City R. Co., 33 Barb., 420, the court said: “No use is proposed to be made of the Jamaica Company’s rails. The. passage of its cars is not to be interrupted or impeded, and no injury is to be done its business. But upon some imaginary right of property at the point of intersection, and which it is thought the defendant will appropriate in crossing, the passage of its cars over the street is to be arrested, and its routes of travel wholly interrupted. It was doubtless the intention of the Legislature that both these grants should have effect. That the franchise should become valuable and profitable to the grantees and beneficial to the public at large. There is no other way in which they can have this effect and produce the desired result but by determining that when the rails of a railroad company are laid down in a public street, they may be lawfully crossed and passed over by the cars of another company, whenever such passing over can be effected without interfering with or impeding the progress of the cars passing along the track thus crossed. In short, that the crossing of the plaintiff’s track by the rails and cars of the defendants is not an appropriation of the property of the former to the use of the latter, but a mode of exercising the public right of transit over the highway.” So in this case, we think that the “property rights” of the appellants, if not imaginary, are at least magnified by the contention of counsel. The trunk line has the right to cross the street, and the progress of its cars is not to be unreasonably impeded or interfered with. There is nothing in the petition and exhibits indicating such hindrance or interference.

It is urged, however, that the appellee 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 road in the transportation of freight and passengers.” (See Johnson’s Adm’r v. Louisville, &c., Ry. Co., 10 Bush, 231.)

But it is immaterial whether the appellee be such a railway company or not, if, as we have seen, its use of the street or highway is such as was contemplated in the original dedication, and no property right of the appellant is molested or destroyed.

We think the petition presents no equity entitling the appellants to the relief asked, and the judgment below is affirmed.