Chesapeake & Ohio Railway Co. v. Blankenship

Response by Judge Settle

— Extending opinion and overruling petition for rehearing.

In response to the petition for rehearing filed in this case by the appellant, it is only necessary to say that the opinion therein is not, as claimed by appellant, in conflict with the rule announced in L. & N. R. Co, v. Scomp, 124 Ky., 330 . In that case it was held that where a strip through a tract of land is condemned for railroad purposes, the railroad is not liable to the landowner for damages resulting from the laying of additional tracks on the right of way not contemplated when the right of way was secured, in the absence of negligence in the operation of the road. The right of way condemned was sixty-six feet in width. Some-years 'after the construction of the railroad the railroad company put in a number of additional tracks and established a station at Scomp’s place. In the opinion it is said:

“When the defendant condemned the right of way and took title to the strip of land condemned for the railway, it acquired the right, to use it, not only for the one track which it originally built, but for such additional tracks as from time to time it may find it necessary to build or deem useful in its business. It has the right to devote the entire strip to its purposes as is provided in the judgment of the court, and all damages from the use of this strip for railway purposes are included in the original assessment.”

It will be observed that the additional tracks constructed by the railroad company were all on the strip *316 or width of ground, of sixty-six feet, acquired by virtue of the condemnation proceedings without restriction as to its. nse of the whole for tracks, and, while there is no difference, so far as the rights acquired are concerned, between the acquisition of a right of way under the power of eminent domain and the acquisition of it under voluntary sale, in point of fact the deed under which appellant in this case acquired its right of way abutting appellee’s lot, by its terms restricts the strip of land acquired to such quantity in width as is sufficient for a roadbed for a single track, and fifteen feet on each side of such track for ditches and supports for the roadbed. It had no right to construct an additional track on the fifteen feet on that side of its single original track abutting appellee’s lot, as such fifteen feet is devoted by the deed to the construction of ditches or supports for the roadbed. Therefore, in constructing the additional roadbed and additional track, after appellee acquired title to his lot, and within twenty feet of his residence, appellant did a thing which it had no right to do, and had not acquired the right to do, at the time of the original construction of its roadbed and single track. It was, in part, for the emission of smoke and cinders upon appellee’s residence and lot.from trains standing and passing on this additional track, that a recovery was sought and had.

It will readily be seen that the facts of this case differentiate it from the case of L. & N. R. Co. v. Scomp, supra, and L. & N. R. Co. v. Orr, 91 Ky., 111 , cited by appellant. The opinion is extended for the purpose of embracing the foregoing elaboration of the conclusion reached therein with respect to this feature of the case.

The petition for rehearing is overruled.