
    Case 35 — PETITION ORDINARY
    January 4.
    
    Louisville & Nashville Railroad Company v. Whitley County Court.
    1. Railroads — Right to Destroy Public Highway. — While the Legislature has the power to grant to a railroad company the right to take land already appropriated to another public use, yet such an intention will not he presumed, but must be shown by express words or by necessary implication. Therefore, a grant of power to lay out a railroad between certain termini where the precise course and direction are not prescribed, but are left to the corporation to be located between the termini, does not give authority prima facie to take the road-bed of a public highway as the track of the railroad or to destroy the highway by removing its support. And the fact that the corporation is authorized, in general terms, to construct “ other branch roads,1' does not enlarge its power in this regard.
    2. A county may maintain an action for injury to its public roads.
    3. Damages por Destruction op County Road — Excessive Verdict. — Where a railroad company in constructing its road cut through the outer base of a mountain and thus destroyed a county road running along the mountain side above the railroad, in an action by the county against the company to recover damages, a verdict for $10,000 is not excessive, as the proof shows that a large section of the county is cut off'from the county seat, and that whatever remedy may be found to relieve the people of that section, the cost will be largely ' more than the amount of the verdict.
    -T. W. ALCORN por appellant.
    '1. If one grants a right of way for a railroad be is, by his grant, held to have consented to the consequences resulting from the proper use of the right of way. (Hortsman v. Lexington, &c., R. Co., 18 B. M., 221; Wolfe v. C. & L. R. Co., 15 B. M., 410.)
    And this rule should' he applied to the plaintiff in this case, the county court being hut the Commonwealth so far as this action is concerned, and so far as concerns its rights to the control, management and ownership of the public roads.
    2. Even if we are not correct in this proposition, the peculiar circumstances here are such that it must he held that by necessary implication the Commonwealth assented to the natural consequences of building the railroad in that place, and that no duty devolved on the company to protect the property of the public from tbe consequences resulting from the proper building of the railroad there. (McAboy v. Railroad Co., 107 Pa. St., 548; C. & P. R. Co. v. Speer, 6 P. E. Smith, 325; Inhabitants of Springfield v. Conn. River R. Co., 4 Cush., 71.)
    3. While a charter does not confer upon a railroad company the right to take a highway for its road-bed, unless that power is conferred in the charter by express words or by necessary implication, yet the power of the Legislature to gz'ant such authority is well established. (Inhabitants of Springfield v. Railroad Co., 4 Cush., 71; Kenton County Court v. Bank Lick Turnpike Co., 10 Bush, 531; Lawrence County Court v. Chatteroi R. Co., 81 Ky., 225.)
    4. In such cases as this the plaintiff is only entitled to l'eeover such damages as he could not, by his own act, have avoided. (Sedgwick ozi Daznages, side page 95.)
    J. H. TINSLEY and K. D. PERKINS eor appellee.
    1. A county may maintain an action for damages on account of an injury to a highway. (Lawrence County v. Chattaroi R. Co., 81 Ky., 225; L. & N. R. Co. v. Eiziley, 7 Ky. Law Rep.; Sedgwick on Daznages, sees. 69-75.)
    2. The county has a vested right in its highways, and while it may he that under the right of eminent domain the Legislature would have the power to gz'ant away this public franchise to one of still greater public utility, yet, in order to do this, the power would have to he clearly defined under the act; it can not he done by construction. (Inhabitants of Springfield v. Conn. River R. Co., 4 Cush., 63; 13 How., 81; 91 N. Y., 552; Boston & Albany R. Co., 53 N. Y„ 574.)
   JUDGE HAZELRIGG

delivered the opinion oe the court.

In building its road through Whitley County, the appellant cut through the outer base of a mountain, and thus destroyed the county road running along the mountain side above and parallel to tbe railroad. Tire support' below the county road being thus removed, landslides occurred, and the road was rendered impassable and useless. The county recovered damages to the extent of ten thousand dollars, and from that judgment this appeal is prosecuted.

It is contended by the appellant that, by virtue of its charter, it was authorized to construct a branch of its roadto the Mississippi River, or any other branch it might desire, and having so acquired this right of eminent domain, it did not “ devolve upon the company to construct a wall or erect any defense for the protection of the adjoining property from the consequences resulting from a proper and reasonable use of the way for the railroad, although such consequences would be injurious, and inevitably so, to the grantor;” . tluat the county court is but the Commonwealth, and by reason of the grant to construct the road, they — the county and the Commonwealth — must be held to have consented to the consequences resulting from the proper use of the right of way; and further, that the authority to seize and occupy the county road longitudinally was intended to be given by the charter, providing that other branches might be built, and therefore, as the right'to do this embraces the right to destroy, no damages are recoverable for such destruction.

We can not concur in these views. Upon the maxim invoked by the appellant — salus rei públicos lex supremo, est — we might concede the power of the Legislature to have granted to the appellant the right to take land already appropriated to another public use, and say, as contended, that “the grant of land for one public use must yield to that of another more urgent,” but, as said in the case relied on by appellant—Inhabitants of Springfield v. Connecticut River Railroad Company, 4 Cush., 12— “When it is the intention of the Legislature to grant a power to take land already appropriated to another public use, such intention must be shown by express words or by necessary implicationand the court further said: “As no company or persons have authority to lay out a railroad, except so far as such power is conferred by the Legislature, the court are of opinion that by a grant of power by a legislative act to lay out a railroad between certain termini, where the precise course and direction are not prescribed, but are left to the corporation to be located between the termini, no authority is given prima facie to lay such railroad on and along an existing public highway longitudinally, or in other words, to take the roadbed of such highway as the track of their railroad.”

The broad terms of the appellant’s charter in authorizing-the construction of “ other branch roads,” instead of enlarging the power to appropriate public lands or easements, as contended by counsel, are restrictions on the power of the company, or at least are so general as not to indicate the right of such special appropriation.

The damages complained of are such as could have been provided against by the erection of stay walls on the right of way of the appellant at the beginning of the work, the cost of which would then have been inconsiderable. The proof shows that a large section of the county is cut off from the county seat by reason of the destruction of this road, and that whatever remedy may be found with which to relieve the people of that section, the cost will be largely more than the amount of the verdict. It is not therefore excessive when considered as the total damages recoverable for the construction complained of. The county could have done nothing to prevent the injury, and its right is undoubted to maintain an action for injury to its public roads. (Lawrence County v. Chattaroi R. Co., 81 Ky., 225.)

Judgment affirmed.  