28 Ky.L.Rptr. 574
Court of Appeals of Kentucky.
Dec. 14, 1905.
ACTION: Dissolved

Appeal from Circuit Court, Bell County.
"Not to be officially reported."
Actions by the Cumberland Railroad Company against the Pine Mountain Railroad Company and by the Pine Mountain Railroad Company against the Cumberland Railroad Company, each to enjoin the other from disturbing a staked right of way location. From an unfavorable decree, both parties appeal. Motion to discharge injunction in favor of Pine Mountain Railroad Company sustained, and motion to discharge a similar injunction in favor of Cumberland Railroad Company overruled.

The Cumberland Railroad Company was organized June 30, 1902, under article 5 of chapter 32 of the Kentucky Statutes of 1903. By its original articles it was authorized to construct and operate a railroad from Artemus, in Knox county, Ky., up the valley of Big Brush creek, a distance of about 10 miles. This road it had about completed on September 15, 1905, when it amended its articles of incorporation by providing for an extension of its railroad to the city of Jellico. As soon as this amendment was made it put its chief engineer, with a lot of men, in the field to locate the right of way for the extension. They began at the end of the then nearly completed original line about September 25th, and by the 9th of October had completed the location of the right of way along Brush creek to Brush Creek Gap and up Greasy creek to Greasy Creek Gap; the right of way so located being marked by stakes in a regular and systematic way. They then continued on until the 19th day of October, when the entire right of way was laid out of the proposed extension. The Pine Mountain Railroad Company executed its articles of incorporation on October 1, 1905, and on October 13th it put a corps of engineers in the field to locate its right of way, which began on the Louisville & Nashville Railroad near Williamsburg; thence up Cumberland river to the mouth of Poplar creek; thence up Poplar creek and down Greasy creek to a point on the Cumberland Division of the Louisville & Nashville Railroad a few miles north of Pineville. But these engineers did not begin at either end of the proposed route. They went in the first place, on October 13th, about 2 o'clock to Greasy Gap, and surveyed from that point onward in the direction in which the Cumberland Railroad Company's engineers were locating its right of way. One crew would be ahead one day and the other the next day, and in this way they raced on as far as the lines ran together; each company aiming to secure priority over the other. At some points the lines were practically identical, and they often crossed each other. The Pine Mountain Company as it went along day by day filed in the county clerk's office its maps of the route as located, and when it had finished its route filed a map of the entire route. That company also, by action of its board of directors, adopted the route so selected. The Cumberland Company filed its map also, but after the map of the Pine Mountain Company had been filed. There was no express action of the directors of the Cumberland Company approving the location of the route as made by its engineers, but as they went along it took deeds for the right of way from such persons as were willing to sell and instituted proceedings to condemn the lands of those with whom it could make no contract. The Pine Mountain Company took like deeds and instituted like proceedings. Finally these suits were brought by each of the two companies to enjoin the other from disturbing it. The circuit court, on the hearing of the case, sustained the injunction of the Pine Mountain Company for a part of the right of way, and sustained the claim of the Cumberland Company to another part of the right of way. Both parties, being dissatisfied with the order of the circuit court, have entered motions to dissolve the injunctions granted by him, and the two cases have been heard together. On the oral argument Judges O'REAR and NUNN sat with me, and on the consideration of the case Judges PAYNTER and SETTLE also sat; Judge BARKER declining to sit in the case. In the spring of 1905 the Louisville & Nashville Railroad Company had the land examined to learn if it was a practicable route for a railway; but we attach no importance to this, as no location was then made and the Pine Mountain Company was not then incorporated. Our conclusions are as follows:

The purpose of requiring a map to be filed under section 767, Ky. St. 1903, is to give notice of the location of the right of way. The map, when properly lodged for record, is constructive notice, just as a deed properly lodged for record; but, if a person has actual notice of the location of the right of way, the fact that the map was not filed cannot be relied on by him. When the engineers of the Pine Mountain Railroad Company went to Greasy Gap and began their work the right of way of the Cumberland Railroad Company had been located through this territory four days before. The stakes were on the ground, the tents of the surveying party were to be seen, and the Pine Mountain Company had full notice of the situation when it undertook to begin its survey at this point in the middle of its proposed line. We therefore conclude that the fact that the map of the Cumberland Railroad Company was not filed is not material, and that it is also immaterial that the Pine Mountain Company first filed its map. When a company has actually located its right of way, and is in good faith following up its location by buying the land or instituting proceedings to condemn it with reasonable diligence, another company cannot go to a point on the route which is neither the beginning nor the ending of its proposed line and run a race with the company which has begun at the beginning of its route and is going on in an orderly way to its other terminus. The railroad company is authorized to take land under eminent domain and when it has in good faith entered for this purpose, located its right of way, and is proceeding to perfect its right, the law prefers him who thus first enters in good faith, and it cannot be permitted that another company with notice of his rights shall make another survey right behind him and destroy his priority which he has thus gained. While it is true that on some days the Pine Mountain Company's engineers were ahead of the Cumberland Company's engineers, they got thus ahead by beginning in the middle of the line and then running a race with the other people. The statute does not contemplate this. It contemplates a location in good faith and in the usual course of business.

Under all the circumstances we conclude that the Cumberland Company has the better right. The motion to discharge the injunction granted to it is overruled. The motion to discharge the injunction granted in favor of the Pine Mountain Railroad Company is sustained, and that injunction is dissolved.

Ky.App. 1905.
96 S.W. 199, 28 Ky.L.Rptr. 574

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