xt73bk16mf8w_604 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [442a] F.W. Bailey v. L&N, Lee Circuit Court text [442a] F.W. Bailey v. L&N, Lee Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_58/Folder_16/5792.pdf section false xt73bk16mf8w_604 xt73bk16mf8w :,. '~‘ .7‘ $7me > Q3 1 ‘ V ..4. ~3§
FALL TERM, 1916, No. 314,
F. W. BEATTY, - - - . - . - Appellant,
versus
LOUISVILLE & NASHVILLE RAIL-
ROAD COMPANY, - - — - - Appellee. .
Supplemental Brief for Appellee.
Appeal from Lee Circuit Court.
EDWARD S. JOUETT,
BENJAMIN D. WARFIELD.
SAMUEL M. WILSON.
Counsel for Appellee.
G. W. GOURLEY.
SAM BURST.
Of Counsel.
May 9, 1917.
Wurrnnzw-Bonn CO.. xsconrounn. Louuvxiu. KY

 . Court of Appeals of Kentucky.
’ Fall Term, 1916, No. 314.
F. W. BEATTY, — » — — — — — - Appellant,
'vs. SUPPLEMENTAL BRIEF FOR APPELLEE.
E LOUISVILLE & NASHVILLE RAILROAD COM—
PANY, — - - - — — -- — - Appellcc
E APPEAL FROM LEE CIRCUIT COURT.
Since our original brief was prepared and ﬁled
and this case sulnnitt‘cd—indeed, only very recently
——the United States Circuit Court of Appeals for the
Eighth Circuit, on April 12, 1917, decided the case
. . of Bryan v. Louisville & Nashville Railroad Com—
: pany, in which, among others, the question involved
... on this appeal was sharply presented.
E Bryan sued the railroad company at St. Louis,
Ma, seeking to recover large damages because of the
abandonment by the railroad company of a part of its
railroad lines in Blount County, Ala, whereby Bryan
f was prevented from continuing to market as he had
E theretofore done his peach and apple crops from
i about 2,600 acres of land, served by Reid’s station
' on the abandoned line.

 . ,7 l,i,ﬁ1_1mw_,____,#,.,i,i_w__#______n_i_____m___n~.,_,_,,_. ..7
2 3
At the trial of the case in the District Court, de- and in such case, if harm comes to a third person,
fendant’s counsel moved the court to direct a verdict it is not a_wrong for which the. law will afford re—
in its favor. The motion was granted. Bryan ap- Elgﬁsijmgtaf 61165173239176] “gig“: lglﬂgg‘lg- ET 31857512683:in
pealed to the Circult Court of Appeals. That court, 3 tiff’s appeal at this term): Broom’s Legal Maxims
on April 12, 1917, affirmed the Judgment of the Dls— (8th Ed), p. 200; Pollock on Torts (7th Ed), pp.
trict Court for the Eastern District of Missouri. In . 126, 127;. Am. & Ellg..Ency. (V01, 8), p. 697. The
the cour f . t . . ‘t' 1 “1 T 1. bl doctrlnc is well stated in this last Citation as follows:
se 0. 1 S op1n10n, as pal 1cu a1 5 app. 1ca e “It may be stated as a general rule that if the Legis—
here, the Clrcuit Court of Appeals used thls lan— lature, acting within its constitutional limitations, di—
guage: 1 rects or authorizes the doing of a particular thing, the
- doing of it in the authorized way and without negli-
“The change in the line of road being as we have gence can HOt b?" wrongful. If. damage results as a
found lawful and there being no contract for the con— consequence 0f its-being done, 1t.1s”da;7m£m: absque
tinuance of the road in its original location counsel mﬂffﬁféjczlnd 111:) action ‘Yluﬁle 3301 Wm t th 1 t
flirtplamtlff] “W? if? anti-WSW” tie pmpOSiti-On crlngel tnshlll; 3527211631 ﬂit 41123321793, 2’.
a a mem Jer o _ . c 1 b .
he is entitled upon its removal to recover damages 1 authprltlets, 1ténayhbecg1ven liychfxrteg olr by Slfifl
either at common law _or upon the constitutional 1 Elia: m’en ’ 01 y e geneia 1a110a aws 0 e
guaranty Of compensation £91) property taken £011 a“62VVhere as in this case the railroads are re-
public use ' No authority 1s Clted Whmh in our opln- . ceedinO' to do, an authorized act and in a lawful rifan—
1%; SEW??? the 13181303131011 stated, 131011 halv e we been ' nel thbere is no legal wronO' Vdo’ne the plaintiffs and
a e o 11 any. n e con rary 1e ru e seems to , ’. ‘ 0‘ '. t? . . ‘ ’
be established that where there is legislative author- 1 the Judge P610? Eras ﬁght 111tdkenly1ng reg}? There
1ty to do. an act, omitting for the present cases of 5 1s 11‘? e1101, anc 1e? Ju gmen e ow 1s a 1med.
the exercise of the power of eminent domain, if in the l C in gages V'l A 6E” [13127 t 62,21,61ng 165.,EF3d' (1736,1112?
domg of it harm comes to an 1nd1v1dual it is not a 1 1011.117 ’ 1.0 01 appease fih 1 $011111, 11 ge a t
wrong for which the. law gives _ a remedy. It is C e 1,‘, (31$: 1: Ogglﬁligg O ut E03333; (’18:; '1 . t'ff’ b
ﬁle-7724120722,tabsqm rimmed. A verfy inlstructive case on half is thdjt ghen a. i?ailroad (conipaigyaglei‘mists C:
, 1s ues.1on as 1 was a case 0 r. ' c 1 ‘1 .1 .‘ .7 ” . . '
De’wggb at (1,1,: V, Atlantic Coast L ,::/1611?; 16951103121? , snatch connection to be made between its line and the
C. 302. We quote the following excerpt from the l private warehouse 0f any person, and delivers mer-
opinion of the court: ' 3 chandis‘e over it for years, it becomes part of the main
u 6 - - - . " ' ‘c . ‘ . . I ‘
1- the d‘ffendants’ hamg ”gala-“"9 authPl‘lt-V ‘90 i3éiio‘tfef1110a13i 11‘}??? ’ oiilifxilnﬁﬁlﬁ align-“11111“ 031
11:12.1}? ISO ﬁlOpOSBd change, aretﬁcting mthm thelr ‘ without the aid of a statute It may) becsgfglyadls
' .. 0 ar as now a ears e ‘ ' . ' ‘ " '
or proposing to do, “a lagvpful thing Erna; $33,133 $3; ‘ sumed that the common law imposes no greater ob-
’ ‘ ligation upon a common carrier with respect to a pri-

 4 5
vat‘e individual than with respect to the public. If a attention, as it upholds, in the strongest poss1ble way,
railroad company may exercise its discretion to dis— the correctness of the judgment of the trial court in
continue a public station for passengers or a public the case at bar
warehouse for freight without incurring any liability ‘ ' _
or rendering itself subject to judicial control, it r‘ Respectfully submitted,
would seem necessarily to follow that it may exercise l V EDWARD S. JOUETT,
its discretion to establish or discontinue a private l BENJAMIN D. WABFIELD,
warehouse for one custom‘er.’ ‘ SAMUEL M WILSON
“Another leading case to the same effect is College ‘ ' 1 ’
Arms Hotel Company v. Atlantic Coat Line R’g/ 00., Counsel for Appellec.
61 Fla. 55. In this case it was said: Gr. W. GOURLEY,
“ ‘Persons who own property at a town adjoining SAM HURST,
a railroad depot and who, relying upon the contin— Of Counsel.
uancc of the depot at the place, have improved the
property, and “have enj oycd special facilities in the May 9, 1917 .
conduct of their business” incident to such location,
have no right on the ground of special and peculiar
injury to their property rights, to enjoin the enforce—
ment of an order of the railroad commissioners for
removal of the depot to another point at the town.
“ ‘Property losses incident to the removal of a
depot that result in consequence of the exercise of
lawful authority, do not afford a right of action,
where no trespass is committed upon private prop—
erty. In the authorized removal of a depot, no law is
violated as in case of excessive charges or unjust dis-
criminations. ’
“The plaintiff having no contract either express
or implied that the defendant would continue to 5
maintain its road and run its trains, and the railroad '
having been constructed by legislative authority for l“
the beneﬁt of the public and not for the particular '
beneﬁt of any individual. composing the public, there
is no breach of contract or breach of duty and hence
no right of action. Kine/{Z7}, (#0., v. St. Louis, etc.,
R’y (10., (59 Mo. 658.”
“To deem it our duty both to our client and to the
court to bring the opinion in the Bryan case to your

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. FALL TERM, 1916.
Case No. 314.
- F. W. BEATTY, - - - - - - - Appellant,
versus
- LOUISVILLE & NASHVILLE RAILROAD
COMPANY, - — - - - - - Appellee.
BRIEF FOR APPELLEE.
Appeal from Lee Circuit Court.
EDWARD S. JOUETT.
BENJAMIN D. WARFIELD,
SAMUEL M. WILSON.
JAMES J, DONOHUE, Counsel for Appellee.
G. W. GOURLEY.
SAM HURST.
Of Counsel.
WESTERFIELD-BONTE CO., INCORPORATED. LOUISVILLE, KY.

 it
».i
4' * .‘ .5 - _ 7
iii i) PROPOSITIODTS ARE) AUTEGRITIES.
i J ;’
'l‘"_ l I
tic" P; .
i Preliminary Statement.
i L C'onitli. of Ky. V. Lexington 8; l‘luvtei'n R’y Co., 167 Ky.
. l 442, Q. 6., 190 S. W. 533:3.
' II.
The Appellee Had the Undeubted Right, Beth at Com-
mon Law and Under the Statute, to Make the
Change in its Reed and. Station Complained of.
Jones \'. Newport. News él’ M. \’. Co., (5:3 Fed. 736.
’ Northern .l‘zie. ll’y Co. \'. ‘Wasliing'ton Territory, 142 U.
|§ _ S. {92. .
’r ”S Comtli. \'. Fitelilmi‘p; ll. (m, 1:3 Gray. l8“.
1 : People V. New York, 1.. E. & W. R. Co., 104 N. Y. 58,
.33 s. (3., 9 N. E. 956.
Fla., C. & P. l2. (‘0. \'. State, Ill Fla. 4812, Q C.. 13 South.
2 103.
l i Ky. State, SOCQ. TOT-7G8, 772.
l
I III.
There Was No Contract, Express or Implied, Between
' ‘ the Parties which. Restrained the Appellee from
3 Making the Steiqe Gomplained of or Gave to Ap-
‘ pellant Any Right of Action for Breach. Thereof.
S Furthermere, éixpgiellee Was Guilty of No Breach of
. Legal Duty and, Neither at Common Law Nor Under
l the Constitution or Statutes of Kentucky or the
, S . Charter of Appellee, Did Any Cause of Action Arise
": l .1'..." ,. in Favor of Appellant.
at"? . . ,
E 1’,» “A St. L. & Tex. l'l’y ( o. \'. Taylor, Slh l\§'. 241, Q. 0.. 29‘ S.
’ ‘ ‘ W. 666.
; ' Louisville, A. 8: l’. l‘ilt‘t‘ll‘ic l?‘_\' (.‘0. V. Wllipps, 87 S. \V.
.. 298, Q. C. (let. appeal), ll8 Ky. lBl, Q. 0., 80 S. 'W. 507. I
l

 ii c i I " ’ iii
L., H. & St. L. R’y Co. V. Baskott, 121 S. 11". 957, s. c. (lst Asher, etc., V. Hutchinson “Tater, Light & Power Co.,
appeal), 104 S. XV. 695. " “»"‘ 66 Kan. 496, s. 0., 71 Pac. 813, s. c., 61 L. R. A. 52.
L. & B. S. R’V Co. V. Moore, 140 Ky. 514:, s. e., 131 S. I Nichols on Eminent Domain, pp. 166-167, See. 144.

IV. 257. i Fry’s Exor. V. L. & B. S. R. R. Co., 2 Met. 314.

L. 8: N. R. (‘0. V. Neai’us, 93 Ky. 53, s. e., 18 S. 1V. .1030. , Bryan, etc., V. Board of Education of Ky. Ann. Con, M.
' (‘omth V. (T. 5’: 0. R ’}' Co., 157 Ky. 110, s. c., 162 S. \V. 783. ‘ E. Church, South, 90 Ky. 322, s. e., 13 S. W. 276, s. 0.,
L. & I. R. 1?. Co. V. Callahan, etc., 143 Ky. 517, s. 0., 136 151 U. S. 639.

S. W. IHlS,.<. e., .‘}-t I..'l1..\. (N. S.) 412. College Arms Hotel CO. V. Atl. Coast Line R. Co., 61
Waller, etc, V. Syck, etc., 14.—6 Ky. 181, s. c., 142 S. \V. 229. Fla. 550—553, s. 0., 51 South. 459.

Board of Trustees: of Elizabethtown V. 0., O. & S. W. R. Fuller V. Ill. Cent. R. Co., 164 Ill. App. 284.

ll. (‘o., 94 K_V. 377, s. c., 22 S. W. 609. Chicago & E. I. R. Co. v. People, ‘222 Ill. 396, s. c., 78 N.
Dewey, cf (11., V. Atlantic Coast Line R’y Co., 142 N. C. E. 784.

39:3, 8. e., 55 S. E. 292. ‘

.lonerx' V. Newport News & M. V. Co., 65 Fed. 736. '
Proprietors ot’ Quincy Canal V. Bryant B. Newconib, 7 IV'

Met. (.\lass.) 276, 285. v V '
110., K. & 'I‘. R’y (‘0. V. ("011mm, 90 Tex. 230, s. e., 38 S. The Public Policy of Kentucky Does Not Forbid Such a
., W. 153. .,I (1 Change and Removal as is Complained of Without
( ole & O’I-Iarra V. Shannon, 1. .I. J. Marshall, 218-222. : According to the Appellant as an Adjoining Land-
l.t,’f\ll)1:1(l)1)‘;]]]k\: ()hio R. h. ( 0. V. .\pplegate, etc, 8 Dana, ; owneraRig'ht of Action for Damages.
llratlhuI‘V V. \Valton, (11.0.. 91 IV. .. ' .. ., 2 l . T. .. r — »-
("henault V. Collins, etc, 155 119V. 311622,”: cf}, 15.}? S. EV. 3.2:. Gleason V' \Veber, 155 h)" 4313 S" C" 109 S' “7' 916'
Rﬂcliﬂilvlll“? V. Northern (‘eiit.’R’V Co., 212 Pa. St. 485, Gathl‘lght V. BVllest & Co., 104 Ky. 106, s. 0., 107 S. 1V.

5. e., m At]. 960. ' K gm 8 CS 767 768
Howell V. MorriSVille Borough, 61 Atl. 932. y' S" e ' I ' .
KinealV, etc, V. The St. L., Kansas Citv & Northern R’V C019 & O’Harrav. Shannon, 1 'I' J' Marshall, 218'

(.0:, 69 M0. 658, ' ‘ Lexmgtou & Olno R. ll. (‘0. V. Appleg‘ate, etc, 8 Dana,

‘ . . .), 9 . V . ', ~‘- , 1 ".’) , -v 289.
Tuiﬁ 31110.1? } (,o. \. Scott, H I‘M. 1-6, s. c., 31 L. R. Bradbury V. Walton, etc., 94 Ky. 163, s. c., 21 S. W. 869.
Tex. & l’ac. R’V Co. v. t‘itV of Marshall, 136 U. s. 393. 0119113111” Collins,1‘§)5 Kl" 312’ S' C" 159 S' W' 834‘
_ Atchison, T. &’S. F. R‘}' (:0. V. Tiedt, 196 Fed. 348. Elizabethtown R. R. Co; V. Jackson,9 Ky. Law Rep. 242.
\Vhitney. etc, V. The State of New York, 96 N. Y. 241. Fry’s Exor. V' L' & B' :5.. R' R" CO" 2 Metc. 314'
Fox ‘_. Cincinnati, 104 U. S. 783, s C" 26 L. Ed. 028. g ( Board of Trustees ‘oyfﬁlulizabg‘ghtown v. 0., O. & S. \V. R.
Fredericks v. Pa. Canal Co., 109 Pa. St. 50. 1,...» « R' CO" 94 K3" "3‘ ’ ’ S‘ C" ’“ S: W 609‘ ..

In. re Water Front in MW of N. Y., 190 N. Y. 350. s. c. 83 '; Bryan, etc-,_V- Board of Educatlon, 90 Ky. 322, s. c., 13
N. r.. 299, .:. (3., 15 1..‘ n. A. (N. S.) 335. ’ i" I i . S' W- 2’6! “(1.151 U- S' 639- . .
'l’homasnu. etc. \'. Seaboard Air Line R'V, H2 N. C. 319 NIChOIS’ Power Of Emlncnt Domaln (2d. Ed’)’ Chap.

.:. e., 5.3 .\‘. 1‘1. 205. ‘ ’ XXX’ 890' 140'

 iv ~ I r
V. J . . ‘1:.
. Cour f l of Kentucky
Gases Clted for Appellant Distinguished. I t 0 Appea S
FALL TERM, 1916.
. Mosel, (to, v. San Antonio 8: Aransas Pass R’y CO., 177 _‘ Case No. 314.
S. W. 1048. i
San Antonio & Aransas Pass R’y Co. v. Moscl, etc, 180 1 ——————
S. \V. 11218. ‘i
or; Ky. 241, 11a Ky. 12], 121 S W. 957, 14.0 Ky. 51;, E F. W. BEATTY, — — - - — - - Appellavzt,
9:; l\'\'. .3:}. :.
.lacquclin v. Eric R. R. CO., 69 N. J. Eq. 432, s. 0., 61 I 63' BRIEF FOR APPELLEE'
Atl. 18. 1
rims V. 1)., 1.. & W. n. 00., 75 N. J. Eq. 348, s. 0., 73 Atl. LOUISVILLE & NASHVILLE RAILROAD COMPANY’ ‘ Appellee'
92.
Horton v. Southern R’y CO., 173 Ala. 231, s 0., 55 South. . i a
931- _ l APPEAL FROM inn CIRCUIT COURT.
liouisvlllc, A. & P. V. .l‘llcctric R’y Co. v. \Vhipps, etc., J
' .118 Ky. 12], s. 0., 80 S. XV. 507. I i . —-———-‘-——
. VI a I.
l The a ellant, F. W’. Boatty, was ilaintiﬁ‘ in the court
“(FTCLUSIO ' pp 1
w 1' N' i below and the appellee, Louisville & Nashville Railroad
5 \' Company, was defendant. The adversary relation of the
7 parties not having changed, it will perhaps cause no con-
i fusion if, in referring to appellant, we sometimes speak
i of him as plaintiff, or, in referring to appellcc, sometimes
. speak of it as defendant. This appeal is prosecuted from
. a judgment of the Lee Circuit Court dismissing the
plaintiﬁ’s suit. for damages after defendant’s demurrer
s r to the petition had been sustained and plaintiff had dc—
i clined to plead further. The litigation concerns the right
I i s of the defendant (now appellcc) to change the location
5. of a few miles of its railroad and a way-station known as
| St. Helen’s and to remove this piece of railroad and this
ll

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2 " x‘ ' 3
particular station to the new location. The plaintiff ‘ For the convenience of the court and the better under-
(nOW appellant) attempts to assert a cause of action for i, i“ standing; of plaintiff’s claim, it may not be superﬂuous to
damages alleged to have been suffered in consequence ‘ state somewhat fully at the outset the actual ayerments
, of such removal and relocation by defendant of its track of the petition. After setting out, in the ﬁrst three num-
and station. thile, in the petition, it is charged that the i bered paragraphs of the petition, that the defendant is a
acts of the defendant complained of were done “wrong— ‘ Kentucky railroad corporation endowed with power to
fully,” yet the plain intent and meaning of the language 1 construct, build, purchase and operate railroads in this
is that the wrong, if any, was a private wrong or civil ‘, State, and that at the time the “wrongs complained of”
tort peculiar to the plaintiff alone, and not a public wrong were committed, was the owner of a line of railroad run—
in the perpetration of which any right of action accrued l ning from Lexington, Ky., through Lee County to Me-
to the plaintiff. That the plaintiff did not, in his peti— l Roberts, in Letcher County, known as the Lexington &
tion, intend to deny that defendant had the right to alter -. i . Eastern Railway, and that said railroad was constructed
for a short distance the location of its road and to remove l through Lee County in the year 1890 by the Kentucky
its tracks and station from the old to the new location . i! , Union Railway Company, which in said year established
is apparent from repeated admissions in the brief herein, l a passenger station and freight depot at St. Helen’s, in
' ﬁled on behalf of the appellant. \Ve shall make this ap- i‘ Lee COHUtY, With the “51131 conveniences, hhd that said
pear by a somewhat fuller statement in another part of i station and depot had been a regular stopping place for
this brief. 1 passenger and freight trains on said road and continu-
'l‘he right of the Lexington & Eastern Railway Com- i Ously in 1150 by the Kentucky Union Railway Company
pany, the then owner of this railroad, to make the change i and its SUCCCSSOTS, including the defendant, from the time
in the stretch of track and depot or station mentioned in i same was established until 011 01' about the 4th day Of
the plaintiff’s petition has heretofore been contested and 1 July, 1914, a period Of approximately twenty-four years,
tried out in the Lee Circuit Court in the case of Com- , the petition proceeds as fOHOWS‘
monwealth of Kentucky v. Lexington & Eastern Rail- i
way Company. In that case a verdict was returned in ‘ ”IV.
favor of the defendant railway company and, 011 appeal ' ' “The plaintiff states that in the year 1903, he pur-
by the Commonwealth to this court, the result in the chased 3 1013 Of ground adjoining said station and dGPOt
court below was affirmed. (See Commonwealth of Ken- 3 ,. premises auderected a business house thereon, about 150
. feet from said station and depot, which was, when the
tacky y. Lexington & Eastern Railway Company, 167 Ky. wrongs hereinafter complained of were committed, of
442, s. e. 181') S. W. 5:32.) the value of twenty-ﬁve hundred ($2,500.00) dollars; that

 4 ‘. " 5
in the year of 1903, he established a general retail mer- p .. “VII. -
cantile business in said house and that he kept for sale " l r , p, , ~ I N ‘1 . ‘ .
and sold therein goods, wares, merchandise and such “Eh? plamtrﬂ State”.th‘ltheeﬁtfmhsmdS81(1bl}blniss
other articles as are usually kept for sale in a country enterprise {it said'place m good {filth and upon expec ai
store; that he bought, sold and exchanged country pro- tion that said station and depot $911M be 0011t111110( ; an(
‘ - in H - .- , , - _ , had it not been 101‘ such expectation he would not have
duee in COIlllCCLlOIl wnh said business and shipped same , A , , , . _
over said railway to the city markets; that he realized estabhshedisaid 131131119“ at said place! That, by reason
as a net prolit out of said business the sum of $600.00 per :;.f the plrolxrrnitylr' of ‘S‘Td 131510120? lillSlvilabifo the 81a“: sta—
year, on an average, and that he conducted the business lOI] anc f CPO " H”: 1‘“ if] £30? 13f 0 “11f iepcop C; 0011113
aforesaid, continumisly, from the time same was estab- toand from the same, 0'1 he 131111395031 019““, ’ “at us
lished until on or about Ll-th day of July, 19] 4, at which Bald place 9f busrness “ as SO C-oiiyeirr(:1rtlyr located as‘to
time his said business was almost completely destroyed make It proﬁtable 1? the matter Of 1009“ iiig‘goo‘ds, wares
by the discontinuance and destruction of said station and and merchandise from the wholesale dealers, f1 onrw horn
depot as hereinafter stated. he purchased stock to run said business, that during all
of the time he was engaged in said busrness, aforesaid,
' ' he shipped large quantities of country produce from said
“V- . station and depot over said railway to the city markets
“The plaintil'l' states that said station and depot were . a and bya‘eason Of the location Of his said business, .:18
located about the center of a thickly settled aO‘ricultural aforesaid, It was 190th convenrcnt “Dd proﬁtable-to hun
i. . . ~' . . O in handhng and shipping said produce as aforesaid.
and lumber district, the extent 01 which is about twenty—
live square miles and the inhabitants thereof used said “VIII.
station and depot, continuously, from the time of their
establislnnent, as aforesaid, until their destruction and “The plaintiff states by reason of the destruction and
abainlonment as hereinafter stated, for public travel and abandonment of said station, depot and railroad, as
the connnercial needs of that community, there being no aforesaid, he has been wrongfully deprived of a good and
other station or depot in that Vicinity. proﬁtable trade with the people goingr to and from the
said station and depot; that public travel to and from
- “Vt. same has thereby been diverted in other directions and
thereby wrongfully depriving,r him of the convenience and
"That on or about the Jith day of July, 1914, the de- proﬁts in handling the said goods, wares, merchandise
fendaut wrongfully and in violation of plaintiff’s rights and country produce, as aforesaid, to his damage in the
tore down, destroyed and carried away said station and 311111 0f 13“) thOUSﬂHd ($5,000-0tll (lO'HilI‘S-
depot and removed all of said side tracks therefrom and .
took up and removed all of the tracks for a distance of ‘ ’ ”IX-
three miles to the north of said station and depot and ﬁve “ ‘ . _. ‘ A ‘ ‘ V ‘ ‘ , .. ‘
miles to the south thereol', thereby completely destroying ,- V ‘b 311110 pldtlmflff ﬁftilt‘istth‘tt if} lid“)? tof 11:”) Wrongful
and permanently abandoning; said station and depot and d .am on‘men .0 san S a unit CPO ‘ 31.“ nae. 8’ as afore-
the del'endant has. ever since said time, failed and rc- saldﬂhls. busmess house has (lelCCljﬂtell ”1 value one
hm”, ,0 reestablish same. half to his damage in the sum of ($1,a50.00) twelve hun-
dred and ﬁfty dollars.”
\.

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1‘ It is not apparent what the plaintiff 0,. plaintiff’s ‘ railroad tracks and the St. Helen’s station or depot in
attorneys intended by breaking the petition up into a V 1 question “'01‘0 “Gt 01113’ WTODQfU] bUt were “in Violation
' series of nine separate numbered paragraphs. \Ve think 0f plaintiff’s rights.” Except such rights 83 the plain—
.i it fair to concede that plaintift could not have intended tiff may have had in the matter under the general law,
1 that. these paragraphs should be taken and treated the Violation of which might have been tortious or wrong—
, separately, but whether they be taken separately or to- ful, the plaintiff manifestly had no rights in the matter
i gether, it is submitted, with the utmost conﬁdence, that subject to Violation, unless those rights arose under and
'i the petition falls far short of stating a good cause of 310- by virtue 0f some contract, oral or written, express or
1 tion. \Vhile it purports to be a suit at law for damages, implied, between plaintiff and defendant. AS preYiously
1 it is our contention that the petition does not state any noted, the petition does “0t allege 01' rely upon any ex—
cause of action, either in contract or in tort. It will be press or written contract and, from the very silence of
i observed that no contract, express or implied, is set up ‘ . the petition on that point, it must be conclusively pre—
1 or in terms declared upon. The injurious acts attributed sumed that any implied contract. relied upon was neither
1,0 the defendant are charged to have been done “wrong- . ‘ originated nor evidenced by any writing, but arose, it at
j l'ully”--i. (,., tortiously, but in what the alleged wrong all, from verbal acts or transactions between the parties,
' mmsisted we are nowhere clearly told. If any act of the or from a given course Of conduct on the part Of the de-
, defendant conil‘dained of was in fact a wrongful act, it fendant or its predecessors in the ownership and opera-
: must have been either an act of negligence or an act in ﬁOh Of this line Of railroad. The petition, moreover, does
' violation of some duty imposed upon the defendant, hOt attempt to set out or rely eyen upon a 0011“th aris-
1 either at common law or by statute. That none of the ing by implication, however such 0011”th might have
5 acts complained of could have been negligent is certain, been implied. The idea Of an implied €011”th is h’hhf’
both because negligence on the part of defendant is not at best, no more than an inference from what actually
.' to be presumed and there is no allegation of negligence in appears in the IDCtiti011' In other WOMS’ h) 1'0“th the
; the petition. That none of the acts complained of vio- ' point, the plaintiff has nowhere in the petition “11th
lated any duty created or imposed either at common law taken or pretended to state. either the QXiStChCO Oh the
: or by statute or the defendant’s charter or otherwise ‘ ’ terms 0f any contract whatsoever between hhhhhff and
will, “.1, think. be demonstrated in the course of this defendant respecting the subject-matter of the suit. The
, hriel'. ..1 ‘~ right of action, if any, in the plaintiff is left to be in-
,1 t is true that the petition charges, in the sixth para- ferred solely from the allegations in the petition which
graph thereof, that the almndonment or removal of the have been recited at length above. If the plaintiff did in

 l
l
l 8 , , 9
i fact, intend to rely upon some contractual relation be- there was ever any agreement of any kind or character
tween himself and the defendant, we submit that such ' ‘ between the parties respecting either the establishment,
I contract, whether express or implied, should have been maintenance or operation of the railroad and station or
affirmatively alleged and its terms distinctly stated. This dQPOt hl question. There “'35 no meeting 0f minds on
I mquirement is nowhere met in the petition. the subject of the establishment and maintenance of
That. a. right of action, based upon an implied eon- either the railroad or the station. No consideration of
tract, is not to be inferred from the averments of the any kind 01' character is shown to have passed from the
petition seems to us almost too clear for argument. It plaintiff to the defendant. or from the defendant to the
is not alleged and could not be alleged in the petition that plaintiff concerning the ShthCt 0f thiS Shit, and the 010‘
the plaintiff was induced by the defendant to purchase ment 0f mutuality respecting the matter is absolutely
his property and establish his business at or near the lacking. HOW; then, can it be pretended that there “'38
St. Helen’s station by any promises or assurances of the . - any contract, and what is it that the plaintiff has to go
defendant that if he did so it. would permanently or for 1113011? Simply lhlswlh‘ “110803, hl substance, that de-
any length of time maintain its station thereat. \Vhen _ ~ .' fendant, 01‘ its remote grantor, the Kentucky UhiOh Rail-
the plaintiff, according to the allegations of the petition, way Company, in the year 1890; COhStl'thOd a th 0f rail-
, acquired his preperty and started his business at St. road through Lee County, K33: and established at 3 001‘-
.llolen’s in the year 1903, defendant’s railroad and sta— tain point 011 said read a passenger station and freight
tion had been in existence and operation, according to depot known as St- Helen’s, and that Shh] railroad, Stil-
further ayerments of the petition, for a period of twelve tion and depot remained continuously in use until the 4th
or thirteen years, and it is evident that defendant’s rail— day Of July, 1914; that hl the year 1903: “th said rail—
road had been built and its depot at St. Helen’s estab- road “'35 hl operation and said station and depot in daily
lished long before the Igilaintiff ever made up his mind use, Phlhliiff purchased a 10t 0f ground adjoining “10 Stil—
that St. Helen’s station was a good place for him to tion and depot premises and erected a business house
locate. Nowhere in the petition is it claimed that the de- thereon and, thereafter, from the year 1903: down to the
fendant or its piwlecessors acquired any part of its right l year 1914; ”21113510th a. general retail mercantile hUSthSS
of way or its depot site at St. Helen’s or other railroad t in said house, both by barter and sale, and that during
facilities from the plaintiff or any one else, through or said time he imported goods from a distance and ship-
under whom plaintiff might claim, under an agreement *' * ped away country PTOdUCC 0"” said th 0f railroad to
that the railroad or depot would be established and the city markets; that he established said business enter-
foreyor maintained at that point. It is not alleged that prise at said P1309 ”hl good faith and “13011 expectation

 10 t ‘.g 1]
that said station and depot would be continued; and had turcs OCCUPIed e011t111UOUStY from the year 1890 down to
it not been for such expectation he would not have estab- ' the year 1914, and that no loss or damage which may
lislied said business at said place; that, by reason of the conceivably have been sustained by the phhhtlft 1h conse-
proxiinitv of said place of business to the said station quence 0f the abandonment 0f 931d railroad, depot and
and depot, plaintiff had a good trade with the people station, and their removal and relocation at another
of the neighborhood going to and from the same, for the , pomt constituted an actionable thhl'Y t0 the Phlhttlft-
purpose of trade”; and that by reason of the abandon- The prlhe‘lptes applicable to thlS appeal, Whteh we
ment of said station, depot and railroad, he had been de- think (tee/131W 1h denymg' 3113' ﬁght 0f recovery t0 the
pi-ived of a proﬁtable trade with the people formerly Ptalhtlft, are very simple and pertec-tly well—settled, lmt
going to and from said station and depot, and that, by . the preCisc question here presented seems never to have
reason of the removal of defendant’s railroad and depot, been passed upon by thls court 311th hence, because Of
public travel has been diverted in other directions. Re- ‘ "a the novelty as well as the superlative importance of the -.
dueed to its simplest terms, the plaintiff’s claim is that, ' question, a more (‘XtCnSlYC Cltatlon 0f authorities and a
without ,,,“. ,.,.,,,.,.spntationsy inducements 01. considera- ‘ ‘4 more elaborate argument may be permitted than might
Hm“ \t-lpliqsmq- hv 01- (m bphalf Of the defendant or . otherwise be allowable. The authorities in point sustain-
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» its predecessors, he established a place of business in mg 01' tending to ShSt‘dlh the POSlthh taken herein by '
proxiinitv to defendant’s railroad, believing that such the appellee “ht be found to be abundant, 110t 011]." 111
lH'OXllHll." would Drove profitable, and upon his own in- Ixentucky but elsewhere.
dependent belief and expectation that the conditions then
existing, so far as the location and operation of the rail- 11-
road were concerned would continue for all time or at . . . . , .
l , l ﬁ _ 1 l 1’ l l' t't' l t ’ 1 The LouisVille & Naslwille Railroad Company had
(“Wt 11‘.( e nite v a t 1011f"! us 70 1 ion (oes no ex )ress ' . . . .
( ’ ' ’ H. . I _ , , I y the undoubted right to change for the distance of: eight
state tor what length of tune it. was his faith and ex- . . . . . . . .
. . _ . - miles, as leCH iii the petition, a part of its railroad in
peetatiou that said station, depot and railroad would be , . .
. 1 Lee County and to remove this eight-mile stretch of road
eoutinuet . . .
, . , _ ' . . and the old station of St. Helen’s to a new location, not-
lt is our purpose in this briet to show that in acting ‘ " . . .
1 1 l p t . t1 t't' tl withstandingr sueli removal necessitated an abaiulonment
as be t i( in t ie matter as se‘ out in ie )0 1 1011 ie . . . .
. . .. . i ‘ . . . I . i , of some eight miles of the old line of road and the ('llSCOIL
plaintilt acquired no vested right either in the railroad, ' it" . . , . .
. , " . ' tinuance of the station and depot formerly maintained
station or depot or in the continued maintenance and . ., . . 7
. ' _ , . at the ponit known as ht, Helen‘s. l\ot only were there
operation thereot in the same location which these struc-

 12 ‘ ‘.. ' 13
no common—law principles of public policy which for— E- 856, 311d F101'id0, C- A P- R- CO- ‘1 State, 31 Fla. 482,
bade it, but it