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This condemnation proceeding was brought in its county court by the appellee, Greenup County, Kentucky, against the appellant railroad company. Pursuant to authority granted by Kentucky Revised Statutes sections In its original and amended answers there, the railroad company challenged the right of Greenup County to maintain the condemnation proceeding.
Greenup County Kentucky Court Directory
The district judge filed a carefully prepared opinion, reported in 71 F. Being denied the right to adduce proof in support of its insistence that in the circumstances of the case the county has no right to condemn the easement in question, the railroad company has appealed to this court. In ruling upon the motion to strike, the district court was careful to accept as true the allegations of appellant's answer, quoted extensively from that pleading, and considered no extraneous circumstances.
We, too, look to appellant's stricken answer for the factual setting and may not consider statements of fact in appellee's brief which are not disclosed in the record. One of the most traveled highways in Kentucky is U. Route No. This highway crossed at grade the tracks and right of way of the Chesapeake and Ohio Railroad at White Oak Crossing, some 3, feet east of the eastern corporate limits of the City of Greenup.
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Connected with Route 23 was another highway which extended through Greenup County into Carter County, and connected with U. Route 60 near Grayson, Kentucky. This latter highway crossed the tracks and right of way of appellant at the Argillite Road Crossing immediately east of the eastern corporate limits of the City of Greenup. A roadway known as Collins Lane also connected with U. Route 23 and crossed the tracks and right of way of appellant at a point between the White Oak and Argillite Road crossings.
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These three crossings were especially dangerous to the traveling public, because of their location and the heavy traffic and the numerous trains passing over them. In , the Department of Highways of Kentucky, supplied with Federal funds, entered into a contract with appellant to eliminate the aforementioned grade crossings and to construct in place of them an overhead crossing at a point approximately on the location of the Argillite Road Crossing. Inasmuch as the law forbade the allocated funds for the elimination of grade crossings to be used for obtaining requisite rights of way, or for settlement of property damage claims which might arise out of the contemplated improvement, it was necessary that appropriate action be taken by the County of Greenup and the City of Greenup for closing the grade crossings proposed to be closed.
The contract further provided that the City of Greenup would enact ordinances and take other necessary steps for the closing, vacating and abandonment of the grade crossings within its corporate limits. The city obligated itself to pay all property damage claims on the part of owners of property within the city limits.
The execution of this contract by the county was duly authorized and directed by the Fiscal Court of Greenup County; and execution by the City of Greenup was duly authorized and directed by ordinance enacted by its Council. Upon the failure and refusal of Greenup County to perform the obligations of its contract, the City of Greenup filed a bill in equity in the state circuit court praying declaratory judgment of its rights under the contract and for a mandatory injunction requiring the county to perform its obligations thereunder.
It was adjudged that the contract was valid and binding on the parties; and both appellant, which had been joined as a party to the suit, and appellee were commanded to perform their respective specified obligations under the contract. On February 5, , the County of Greenup took appropriate legal action to close, vacate and abandon the three grade crossings by petition addressed to its county court. That court entered judgment ordering that the grade crossings be abandoned, vacated and closed. The judgment recited that, after the construction and opening to travel of the overhead crossing, the existing grade crossings would no longer be necessary for the accommodation of the public and that, inasmuch as they were hazardous and dangerous, it was deemed to the interest of the public safety and convenience that the grade crossings be closed and abandoned.
On appeal to the circuit court, this judgment was affirmed. The obvious purpose of the contract between the city, the county and the railroad company was to eliminate the three grade crossings, so as to decrease the hazard of public travel by the construction of a single overhead crossing. The answer of appellant asserts that the crossing now proposed to be opened and constructed over its line of railroad is located only feet west of the former location of the White Oak Crossing and that the purpose of this proceeding is to substitute the new crossing for the old White Oak Crossing.
The effect of this action is stated to be in violation of both the contract and the judgment of the state circuit court directing the closing of the White Oak Crossing. The answer pleads that the County of Greenup is, for the foregoing reasons, estopped from maintaining this proceeding or from causing the highway and crossing described in the petition to be opened and established.
Assuming, as is quite apparent, that Greenup County has breached its contract with the railroad company, there can be no estoppel successfully invoked against its condemnation of the right of way and easement which it seeks in this proceeding. A state and, of course, a county cannot by contract divest itself of its power of eminent domain: that is, to take private property for public use upon payment of just compensation to the owner.
Pennsylvania Hospital v. City of Philadelphia, U. City of Galveston, U. City of Chattanooga, U.
Chesapeake & O. Ry. Co. v. Greenup County, Kentucky, F.2d – taira-kousan.com
State of Oklahoma, U. Chicago, B. The power of eminent domain is "so inherently governmental in character and so essential for the public welfare" as not to be susceptible of abridgement by agreement. It would clash with the well established principle just stated to hold that the judgment of the state circuit court, ordering the Fiscal Court of Greenup County to perform its contract, precluded the county in the future from exercising its power of eminent domain to acquire an easement and right of way over the railroad tracks of appellant, in the same vicinity if the public interest should require it.
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Indeed, we find no provision in the judgment of the circuit court forbidding Greenup County's opening and maintaining a road across the railroad tracks of appellant at another time, or at another place. No implication of an intention on the part of the state court to exercise unauthorized power may be indulged. No authority is vested in the United States District Court, or in this court, to require, as a condition precedent to entry of a judgment of condemnation of the right of way or easement, that Greenup County shall reimburse appellant for its expenditures in complying with its contract relating to the construction of the single overhead crossing and the closing of the three grade crossings.
All that can be awarded appellant in this condemnation proceeding is just compensation for its property taken by the county in the exercise of its power of eminent domain. Whether the railroad company may have a right of action against the county for breach of contract is not for us to say in the instant controversy. The district court rested its opinion upon two propositions: 1 that the determination of the necessity for the condemnation of an easement for the road rested exclusively with Greenup County as a legislative body; and 2 that the railroad company had not appealed to the circuit court within 35 days, as required by statute, from the judgment of the Fiscal Court of Greenup County declaring the necessity for the road.
See Kentucky Revised Statutes, sections The two propositions will be discussed in order. The district court stated, with reference to the second defense which was stricken, that it could not pass upon the question of necessity for the proposed road under the allegations of the answer. It was considered that "the naked question of necessity is expressly in the judgment of the Fiscal Court of Greenup County.
But we have in the record no proof of the assertions made in this resolution, for, as we have seen, the case was not permitted to go to trial for development of the facts. First, considering the pertinent statutes, we find that section