The Lexington & Ohio Rail Road Company against Applegate and
APPEALS OF KENTUCKY
38 Ky. 289; 1839
Ky. LEXIS 56; 8 Dana 289
June 19, 1839, Decided
FROM THE LOUISVILLE CHANCERY COURT.
DISPOSITION: Decree dismissing the cross bill affirmed; and
decree perpetuating injunction reversed; and cause remanded,
COUNSEL: Mr. Guthrie and Mr. J. T. Morehead for the appellants;
Mr. Crittenden and Mr. Pirtle for the appellees.
JUDGES: CHIEF JUSTICE ROBERTSON.
CHIEF JUSTICE ROBERTSON delivered the opinion of the
This appeal brings up for revision a decree of the Chancellor of
the city of Louisville, perpetually enjoining the Lexington and
Ohio Rail Road Company "from running, using or employing their
cars and carriage, by 'steam or otherwise, upon their rail road
along Main "street between Thirteenth street and Sixth street,"
in the said city.
By an act of the Kentucky Legislature, approved in
1830, "the Lexington and Ohio Rail Road Company" was
incorporated--with authority to construct a rail road from
Lexington, to "some one or more points on the Ohio river;" and
to use any land and materials, necessary for that purpose, by
obtaining the consent of the owner, or by paying the value
thereof, to be assessed upon a writ of ad quod damnum; and "to
place on the road, when constructed,
wagons, vehicles or carriages which they may deem necessary and
proper for the purpose of transportation;" and, also, to exact a
prescribed toll for transportation of persons and property on
the rail road.
Having determined to make a point on the Ohio river, at or near
the city of Louisville, the terminus, the company located its
rail road from Lexington to Louisville, constructed it as far as
Frankfort, and partially graded it between Louisville and
Frankfort; and, desiring to extend the road, through Louisville,
to the Ohio river, below "the falls," it obtained a supplemental
act, in 1833, authorizing such extension.
Under the authority of these enactments, the company, with the
concurrence of the Mayor and Council of Louisville, extended the
location of its road, within that city, to a designated point in
Jefferson street; and, having afterwards obtained the consent of
the Mayor and Council, to the construction of the road from
Portland, below "the falls," to Thirteenth street; thence along
Main street, to Sixth cross street, and thence to the wharf;
with permission "to run its cars by steam, at the rate of not
more than six miles an hour, between Sixth and Thirteenth
streets"--it constructed the road accordingly, from Portland to