
    Chesapeake & O. Ry. Co. v. Castle.
    (Decided Feb. 3, 1933.)
    BROWNING & DAVIS and KIRK & WELLS for appellant.
    I. G. RICE for appellee.
   Opinion of the Court by

Drury, Commissioner

Affirming.

Lewis Castle sued the Chesapeake & Ohio Railway Company for $3,000 alleged depreciation in the vendible value of his land by what he alleges to be the destruction of his means of reaching the public road; he recovered $800, and the railway company has appealed.

Plaintiff’s tract contains about 30 acres. It is near Paintsville and formerly bordered upon tbe Le-visa fork of tbe Big Sandy river, and a public road ran along tbis river and tbrongb this land, by means of wbicb tbe occupants of tbis land then went to tbe county seat, etc.

About 1905 or 1906 a railroad was constructed along tbis river, and by some means not disclosed in tbis record a 100-foot strip was taken for railroad purposes. Tbe present location of tbe railroad is between where tbe public road then was and tbe river; but in constructing tbe railroad, and as a part of its plan, tbis public road was moved and located between tbe railroad and tbe river, and to enable those occupying tbe land now belonging to tbe plaintiff to reach tbe public road as relocated a crossing was constructed by .the railroad company by wbicb occupants of plaintiff’s property crossed the railroad and thus reached tbe public road. Tbe railroad company maintained tbis crossing, and tbe occupants of the plaintiff’s land used it until about tbe year 1924 or 1925 when tbe original railroad track was moved over a little nearer tbe river and a second track was constructed between tbe plaintiff’s property and tbe first track, and tbe grade of both tracks, already on a high fill, was raised about 20 inches, as a result of wbicb tbis crossing wbicb bad theretofore been none too good now became impassable; and after enduring tbis situation for a year or so tbe plaintiff sued with tbe result noted.

No complaint is made of tbe amount of tbe recovery, the sufficiency of tbe evidence or tbe instructions, except tbe railway company contends it was entitled to a directed verdict in its favor, first, because as it says tbe plaintiff failed to prove any grant of right to use tbis crossing, and that in tbe absence thereof plaintiff’s use of this crossing must be presumed to be permissive. Tbe fallacy of tbis contention is tbe public road was there, and its occupants were using tbe public road and bad convenient access thereto before tbe railroad was constructed; tbe public road was put upon tbe opposite side of tbe railroad by and for tbe convenience of tbe railway company, and that it then provided tbis crossing to enable tbe plaintiff’s predecessors to reach tbe public road as thus relocated. Now having rendered this crossing impassable, it is in no position to complain of the award to the plaintiff.

The next ground upon which it contends for a directed verdict is that granting plaintiff’s use of this crossing was a matter of right, that there can be no recovery for any destruction of it which is the result of necessary additions to or changes in the railroad tracks, structures, or roadbed, and in support of this it relies upon the opinion in Louisville & N. R. Co. v. Scomp, 124 Ky. 330, 98 S. W. 1024, 30 Ky. Law Rep. 487; but that opinion does not sustain its contentions.

Plaintiff’s deed shows his property abuts on the west side of the public road for 216 feet, the railway company has shut off his access to it, without showing a right to do so, the resulting damages it must account for, the evidence sustains the verdict, and it was rendered after the jury upon motion of the railway company had been sent to view the premises.

Judgment affirmed.  