Opinion
Decided March 15, 1927.
Appeal from Perry Circuit Court.
SCOTT E. DUFF, E.C. DUFF and H.C. EVERSOLE for appellant.
MORGAN, EVERSOLE BOWLING, JESSE MORGAN, C.S. LANDRUM, ASHBY M. WARREN and WOODWARD, WARFIELD HOBSON for appellee.
Affirming.
On September 12, 1910, B.F. Fugate and Green B. Fugate sold and conveyed to the Lexington Eastern Railway Company a strip of land lying on the north fork of the Kentucky river in Perry county for right of way purposes. On July 23, 1912, the same company purchased from. E.F. Fugate for right of way purposes a strip of land adjoining the original right of way acquired from B.F. and Green B. Fugate. On October 5, 1915, the Lexington Eastern Railway Company conveyed all of its right, title and interest in said strips of land and rights of way to the Louisville Nashville Railroad Company.
On August 29, 1913, the Fugates conveyed the remainder of their land adjoining the rights of way to S.C. Collins, who thereafter improved the premises by erecting a dwelling house, planting an orchard and laying out a garden.
Alleging that the Louisville Nashville Railroad Company owned the right of way, but that within the past two years it had constructed a new track on its right of way along the entire distance of his property, which track was thirteen feet nearer than the original track, and that by reason of its construction passing engines emitted and threw upon his premises cinders and smoke in great quantities, which was a constant nuisance to his use and occupancy of the property, Collins brought this action to recover damages. The defendant filed a demurrer and also an answer denying certain allegations of the petition, and pleading, in substance, its purchase for a valuable consideration of the right of way from the Fugates, and the subsequent purchase by Collins from the grantors of the remainder of the land. Collins demurred to the answer, and also filed an amended petition setting out at length the items of damage. Whereupon, the defendant's demurrer to the petition and amended petition was sustained, and the petition dismissed. Collins appeals.
When land is condemned or purchased for railway purposes it is acquired not solely for the present needs of the railroad, but for all needs which the future may develop. Hence, unless it appears that it was condemned or purchased solely for the purpose of constructing thereon a single track, it will be conclusively presumed that the compensation then paid was intended to cover not only the damage resulting from the prudent operation of the railroad on a single track, but all damages that might result from its prudent operation on such additional tracks as the company might deem necessary in the conduct of its business. Therefore, neither the original grantors, nor their vendees, who purchased with notice, can recover any damages growing out of the construction of additional tracks and the operation of trains thereon, in the absence of an averment that the acts complained of were negligently done, or were unnecessary in the careful and proper operation of trains. Moore, et al. v. C. O. Ry. Co., 202 Ky. 339, 259 S.W. 695; Louisville N. R. Co. v. Scomp, 124 Ky. 330, 98 S.W. 1024. Since the petition as amended contains no such averment, but proceeds solely on the theory that the damage resulted from the operation of engines on an additional track, which had been constructed nearer to appellant's premises than the original track, it is clear that no cause of action was stated, and that the demurrer to the petition was properly sustained.
Judgment affirmed.