1.Construction.

This section does not restrict the length of tramways for transportation of lumber to three miles. Goose Creek Lumber Co. v. White, 219 Ky. 739 , 294 S.W. 494, 1927 Ky. LEXIS 450 ( Ky. 1927 ).

2.Condemnation.

Where land was needed to reduce grades and curves in spur between mine and railroad, so as to reduce dangers to operatives, and land was also needed for terminal facilities to avoid an extraordinary outlay, a “necessity” for condemnation existed. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

A “necessity” for condemnation, within the meaning of this section, is a convenience substantially advancing the public interest by making the road safer and better. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

Strip wider than 50 feet may be condemned where more than one track is necessary. Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ).

Foreign corporations may condemn land under this section. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

Proceeding to condemn property for railroad spur, under this section, may be consolidated with proceeding to condemn property for tramroad, under KRS 381.580 (now repealed), in order to connect tramroad and spur. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

The word “buildings” is synonymous with “structure,” and a mine tipple is a building for which land may be condemned. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

3.— Private.

Owners of stone-cutting rights are not entitled to the use of a railroad track erected by the owner of the servient estate for his own use unless they acquire such right by private negotiations or by condemnation proceedings, nor can they compel owner of the servient estate to permit a railroad company to receive and ship their stone over the track. Bedford-Bowling Green Stone Co. v. Oman, 134 F. 441, 1904 U.S. App. LEXIS 5170 (C.C.D. Ky. 1904 ), aff'd, 134 F. 64, 1905 U.S. App. LEXIS 4250 (6th Cir. Ky. 1905 ).

4.— Public Use.

All persons have equal rights and equal obligations with the owner to the use of a passway, pipeline, or roadway obtained by condemnation. Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ).

The condemnation of lands as authorized by this section is for a public purpose. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

Fact that property sought as right of way is taken for private use does not preclude awarding easement, where owner may be compelled to make use public. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

According to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not the essential inquiry but the controlling and decisive question is: Has the public the right to its use on the same terms as the person at whose instance the way was established? If it has the right to its use, it is a public use; if it has not, it is a private use. Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

5.Railroad Law Governs.

Switches built under this section are governed by the railroad law insofar as it is applicable. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ); Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

When mine or quarry owner operates railroad under this section he is not a common carrier within meaning of Const., § 210; but, being governed by railroad laws, he cannot prevent persons along his railroad from using it upon payment of a proper charge, nor can he make this charge prohibitive or extortionate. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

6.Separate Business.

Operation of railroad by mining company under this section was not a separate business but an essential part of business of mining and marketing coal. Strunk v. Barren Fork Coal Co., 253 Ky. 333 , 69 S.W.2d 723, 1934 Ky. LEXIS 670 ( Ky. 1934 ).

7.Spur Track.

Contract under which mining company agreed to indemnify railroad against claims arising from operation of spur track was not contrary to public policy, and was supported by consideration. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where mining company and railroad entered into contract covering operation of spur track, slight changes in location of tracks made by mining company for its own convenience would not affect its liability under the contract. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

8.Liability for Trespass.

If a coal company while constructing a railroad under this section encroached upon lands by depositing rock, dirt and debris outside of the 50-foot right of way, and at a place where it was not reasonably necessary in the construction of the railroad, it committed a trespass, but a later owner could not be held liable for this trespass. Buck Creek R. Co. v. Haws, 264 Ky. 436 , 94 S.W.2d 980, 1936 Ky. LEXIS 328 ( Ky. 1936 ).

9.Joint Stock Company.

Joint stock company, having the right of eminent domain under this section, is a corporation within the meaning of Const., § 203 by reason of Const., § 208. Stearns Coal Co. v. McPherson, 144 Ky. 730 , 139 S.W. 971, 1911 Ky. LEXIS 734 ( Ky. 1911 ).

10.Rates.

Where, as consideration for construction of railroad by mining company, others agreed to pay certain charge for transportation of freight over railroad, they cannot claim that such charges are extortionate until mining company has been repaid its outlay for construction. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

Where mining company owned switch and charged tenants 8¢ per ton royalty for both coal and transportation and charged others 5¢ per ton for transportation, there was no discrimination against such others. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

Cited:

Holladay v. Peabody Coal Co., 560 S.W.2d 550, 1977 Ky. LEXIS 570 ( Ky. 1977 ).

1.Application.

This section applies to railroads of every character, including steam and electric, and although Const., § 163 omits steam railroads the legislature had the power through this section to require steam railroads to obtain city authority to use its streets. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Subsection (2) of this section has no application to the erection of safety zone posts in street by street railway for benefit of its passengers. Such posts are not dangerous obstructions of the street. Goucher v. Louisville R. Co., 247 Ky. 504 , 57 S.W.2d 472, 1933 Ky. LEXIS 416 ( Ky. 1933 ).

2.Use of Right-of-Way.

Railroad may use its right-of-way for any purpose necessarily incident to its business, which does not interfere with the rights of property owners or trespass upon the rights of the public. Louisville & N. R. Co. v. Covington, 184 Ky. 811 , 213 S.W. 568, 1919 Ky. LEXIS 141 ( Ky. 1919 ).

State or city may extend streets across an existing railroad right-of-way and railroad is not entitled to compensation for expense it might necessarily incur in constructing, maintaining, or protecting these streets across its right-of-way. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

3.Condemnation.

Railroad cannot exercise the right of eminent domain by obstructing or appropriating a highway unless it furnishes another way substantially as good as the old one for the public. Louisville & N. R. Co. v. Hart County, 50 S.W. 60, 20 Ky. L. Rptr. 1820 (1899).

Under paragraph (e) of subsection (1) of this section, railroad need only allege that the land proposed to be taken is necessary. This is a question of law for the court to decide. Warden v. Madisonville, H. & E. R. Co., 125 Ky. 644 , 101 S.W. 914, 31 Ky. L. Rptr. 234 , 1907 Ky. LEXIS 309 ( Ky. 1907 ).

In proceeding to condemn strip 200 feet wide, evidence showed reasonable necessity for the land, which is all that is required. Contractor’s testimony that his contract was for single track was not conclusive that railroad did not intend to build another. Warden v. Madisonville H. & E. R. Co., 128 Ky. 563 , 108 S.W. 880, 33 Ky. L. Rptr. 38 , 1908 Ky. LEXIS 77 ( Ky. 1908 ).

Where power of eminent domain is delegated, the state reserves right of future control of the property taken and the power to take it again as many times as is necessary for public use. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

4.Change of Land Use.

In petition by state to escheat lots lying along and near railroad right-of-way under Const., § 192, lot occupied by section foreman, lot constituting only available site for future station, lot for storing ties, lots near freight station held for future use, lots planted with trees to be used for future ties and lot with buildings occupied by section hands were not subject to escheat. Louisville & N. R. Co. v. Commonwealth, 151 Ky. 325 , 151 S.W. 934, 1912 Ky. LEXIS 812 ( Ky. 1912 ), modified, 151 Ky. 774 , 152 S.W. 976, 1913 Ky. LEXIS 586 ( Ky. 1913 ).

Where deed conveying land to railroad company was unconditional, title did not revert to grantor when railroad ceased to use land for railroad purposes. Davis v. Rose, 278 Ky. 752 , 129 S.W.2d 530, 1939 Ky. LEXIS 491 ( Ky. 1939 ).

5.Public Nuisance.

Use of street for switching purposes by railroad was not such interference with public use as to constitute public nuisance. Illinois C. R. R. v. Covington, 211 Ky. 825 , 278 S.W. 109, 1925 Ky. LEXIS 977 ( Ky. 1925 ).

Permanent obstruction of streets and highways by railroad is nuisance. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Where railroad crossings over roads at grade level are constructed and maintained in a legal manner, under a statutory right, they cannot be said to constitute a public nuisance. Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

In action by railway to enjoin city from enforcing ordinance requiring railway to build an underpass or overpass at one of nine crossings within city limits, city’s answer did not allege facts sufficient to show authorized use of crossings by railway constituted a nuisance and therefore ordinance could not be sustained under KRS 86.150 (now repealed). Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Normal, prudent, authorized operation of a railroad over properly constructed and maintained crossing is not a nuisance. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

6.Change in Location.

Paragraph (g) of subsection (1) of this section fixes the extent and purpose for which location of railroad may be changed. After railroad has been constructed, no change of location can be made without legislative authority. Southern R. Co. v. Hatchett, 174 Ky. 463 , 192 S.W. 694, 1917 Ky. LEXIS 235 ( Ky. 1917 ) ( Ky. 1917 ).

Removal of railroad tracks in the manner provided by statute does not give one owning property contiguous to abandoned track a cause of action against the railroad. Beatty v. Louisville & N. R. Co., 176 Ky. 100 , 195 S.W. 487, 1917 Ky. LEXIS 47 ( Ky. 1917 ).

7.Construction Across Public Ways.

Right to construct railroad across public street is not superior to right others have to use the street for the purpose for which it was dedicated, and railroad cannot so use street as to amount to a conversion of it to its exclusive use and the exclusion from it of others. Illinois C. R. R. v. Covington, 211 Ky. 825 , 278 S.W. 109, 1925 Ky. LEXIS 977 ( Ky. 1925 ).

Although KRS 67.080 enjoins the fiscal court with the duty of providing for the “good condition of the highways in the county,” it is clear that a county has no statutory authority to prevent a railroad from crossing a county highway at grade level if the railroad company complies with the requirements of this section and KRS 179.290 . Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

This section grants railroads the right to cross streets at grade level. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Paragraph (h) of subsection (1) of this section applies to a complete crossing as part of a continuous road and does not apply to a switch or “Y” extending from a track in a street to a lot adjacent to the street. Shelbyville, Ky. v. Glover, 184 F. 234, 1910 U.S. App. LEXIS 5084 (6th Cir. Ky. 1910 ).

Paragraph (h) of subsection (1) of this section does not authorize railroad to lay its tracks longitudinally in the highway. Jefferson v. Louisville & I. R. Co., 155 Ky. 810 , 160 S.W. 502, 1913 Ky. LEXIS 352 ( Ky. 1913 ).

The words “upon” and “across” are to be construed as synonymous when applied to railroad’s occupation and use of a street, sidewalk or highway. Jefferson v. Louisville & I. R. Co., 155 Ky. 810 , 160 S.W. 502, 1913 Ky. LEXIS 352 ( Ky. 1913 ). See Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

8.— Violation of Covenants.

Purchasers of lots in new subdivision outside city were not entitled to injunctive relief against railroad building track through new subdivision, even though deeds to lots provided that purchasers should be entitled to free use of streets and alleys. Husbands v. Paducah & I. R. Co., 176 Ky. 290 , 195 S.W. 831, 1917 Ky. LEXIS 70 (Ky.), modified, 178 Ky. 458 , 199 S.W. 3, 1917 Ky. LEXIS 746 ( Ky. 1917 ).

9.— Consent of City Authorities.

Where city ordinance authorizing construction of railroad in street required it to be constructed so as not to impede or obstruct traffic over its track at any point and provided that no ordinance could be enacted rendering it useless, company was not required to construct its road so that vehicles could pass over it at any point along its line and city had no right after road was constructed to prescribe such grade for the track as would be equivalent to the removal of the road. City of Owensboro v. Owensboro & N. R. Co., 40 S.W. 916, 19 Ky. L. Rptr. 449 (1897).

Where city prescribes streets and route along which interurban railroad may construct tracks, no franchise or privilege is granted to railroad that it does not have under this section; and such grant is not in violation of Const., § 164. Diebold v. Kentucky Traction Co., 117 Ky. 146 , 77 S.W. 674, 25 Ky. L. Rptr. 1275 , 1903 Ky. LEXIS 280 ( Ky. 1903 ).

Previous consent of city for railroad to occupy street did not give railroad right to build track across sidewalk without obtaining permission so to do. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Subsections (3) and (4) of this section must be read together, and consent of city must be obtained before railroad can build a spur across sidewalk, which is part of street. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Where railroad crosses city streets, its right to excavate and lay water mains under the streets to supply its engines is inherent in the grant to use the streets, but city may prescribe regulations, governing excavation and laying of water mains, for protection of city and traveling public. Louisville & N. R. Co. v. Covington, 184 Ky. 811 , 213 S.W. 568, 1919 Ky. LEXIS 141 ( Ky. 1919 ).

A city council is given the power to authorize the use of the streets by a railway and to determine the sufficiency of the type and plan of construction and where a railroad bridge is constructed and maintained in accordance with the plan, neither the city nor the railroad will be liable in an action of negligence for an injury arising therefrom unless the plan adopted is manifestly unsafe or dangerous. Pugh v. Catlettsburg, 214 Ky. 312 , 283 S.W. 89, 1926 Ky. LEXIS 323 ( Ky. 1926 ).

City cannot assess and collect apportioned cost of street improvement against property of railroad having tracks in center of street, in absence of agreement under subsection (3) of this section. Louisville & N. R. Co. v. Frankfort, 239 Ky. 670 , 40 S.W.2d 288, 1931 Ky. LEXIS 840 ( Ky. 1931 ).

Since legislature has undertaken to exercise complete control of grade crossings and their elimination by statute any common-law rights of cities with regard to grade crossings is clearly abrogated; therefore city of fourth class had no right by virtue of common law to pass ordinance requiring railroad to build underpass or overpass at one of nine crossings within city limits. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Subsection (1)(h) of this section and original franchise granted railroad by city authorized a temporary obstruction by railroad of city streets such as the blocking of all municipal crossings simultaneously by a long moving freight train thereby blocking traffic between two parts of city. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

10.— — Refusal of Consent.

Railroad upon rejection of its own terms and refusal of permission by city, cannot proceed to lay its water mains underneath the streets and enforce its right by enjoining city from interfering with the work. If railroad has a remedy for city’s arbitrary refusal to agree upon terms and conditions (a question not decided), it is by mandamus to compel city authorities to exercise their discretion in good faith. Louisville & N. R. Co. v. Covington, 181 Ky. 86 , 203 S.W. 1060, 1918 Ky. LEXIS 494 ( Ky. 1918 ).

11.— Sharing of Construction Costs.

A city may, by ordinance, contract or franchise, require railroad to bear its proportion of the cost of constructing or reconstructing streets along which its tracks run. Kentucky Traciton & Terminal Co. v. Carey-Reed Co., 188 Ky. 226 , 221 S.W. 1078, 1920 Ky. LEXIS 261 ( Ky. 1920 ).

12.Maintenance.

An indictment of a railroad company for a common nuisance in suffering its railroad bridge to remain out of repair was sufficient although it did not allege the bridge was on the railroad’s right-of-way since it apprised the railroad fully of the charge to be tried. Illinois C. R. Co. v. Commonwealth, 138 Ky. 742 , 129 S.W. 94, 1910 Ky. LEXIS 125 ( Ky. 1910 ).

This section imposes a duty to maintain the highway upon the railroad company only where its tracks are constructed over existing highways and streets. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

Unless shown to have constructed its track over an existing highway, a railroad company does not have a duty to perform ordinary maintenance of the highway surface outside of the crossing and its immediate approaches. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

Railroad company which did not construct its tracks over an existing highway has no duty to remove sand on that portion of the highway within its right-of-way, particularly where the sand was installed by the county highway department to protect the public from the dangers of snow and ice. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

13.— Order to Abandon Line.

Where part of consideration for conveyance of right of way was agreement of railroad to maintain switch and flag station on conveyed right-of-way “forever,” it was held that intention of parties was that switch and flag station should be maintained only so long as railroad operated line along right-of-way, and railroad’s obligation ceased when it was ordered by interstate commerce commission to abandon line. Meacham v. Louisville & N. R. Co., 293 Ky. 642 , 169 S.W.2d 830, 1943 Ky. LEXIS 678 ( Ky. 1943 ).

14.— Sidewalk.

Under this section a railroad company has the duty to keep a sidewalk crossed by its tracks in a reasonably safe condition for pedestrians. Chesapeake & O. R. Co. v. Pope, 296 Ky. 254 , 176 S.W.2d 876, 1943 Ky. LEXIS 150 ( Ky. 1943 ).

15.— Crossings.

It is the duty of a railroad company to maintain in reasonable order and condition all highways crossing the tracks of the railroad, to the full width of the right-of-way, regardless of any question as to the time of their establishment and failure so to do constitutes a nuisance. Commonwealth v. Louisville & N. R. Co., 109 Ky. 59 , 58 S.W. 478, 22 Ky. L. Rptr. 572 , 1900 Ky. LEXIS 170 ( Ky. 1900 ).

Requirement of railroad’s charter that railroad furnish farm crossings is a continuing obligation and it is required to furnish crossings reasonably necessary for the fair use of the land and when timber land is cleared and occupied as a residence the owner is entitled to a reasonable crossing from one part of the land to the other. Louisville & N. R. Co. v. Troutman, 137 Ky. 827 , 127 S.W. 474, 1910 Ky. LEXIS 633 ( Ky. 1910 ).

Railroad’s duty to restore highway at crossing and construct and maintain approaches to crossing cannot be delegated to county officials. Louisville & I. R. Co. v. Speckman, 169 Ky. 385 , 183 S.W. 915, 1916 Ky. LEXIS 695 ( Ky. 1916 ).

Where retaining wall outside right-of-way is a support both for railroad road-bed and approach to a crossing, the railroad alone has duty of properly constructing and maintaining the wall in a condition to make the approach and crossing safe for travel. Louisville & I. R. Co. v. Speckman, 169 Ky. 385 , 183 S.W. 915, 1916 Ky. LEXIS 695 ( Ky. 1916 ).

If changes in the ordinary and usual mode of travel render a railroad crossing and structure dangerous, the duty rests upon the railroad company to meet these changes and exigencies of modern travel. Tennessee C. R. Co. v. Hancock's Adm'x, 245 Ky. 426 , 53 S.W.2d 708, 1932 Ky. LEXIS 605 ( Ky. 1932 ).

In the absence of undisputed evidence of actual or presumptive knowledge of defects, a railroad company is only required to exercise ordinary care to maintain highway across its tracks to the requisite standard of being reasonably safe for public travel as it is not an insurer of such maintenance. Louisville & N. R. Co. v. Jackson's Adm'r, 243 Ky. 59 , 47 S.W.2d 941, 1932 Ky. LEXIS 35 ( Ky. 1932 ).

In the absence of undisputed evidence of actual or presumptive knowledge of defects a railroad is only required to exercise ordinary care to maintain the highway across its tracks to the requisite standard for the use of the traveling public, including persons traveling on foot, and it is not an insurer of such maintenance. Cincinnati, N. O. & T. P. R. Co. v. Terry, 267 Ky. 707 , 103 S.W.2d 65, 1937 Ky. LEXIS 362 ( Ky. 1937 ).

Where pedestrian could have crossed tracks ahead of approaching train safely, but caught his foot in a hole in the sidewalk, and was unable to extricate same in time to avoid injury, the question involved was the negligence of the railroad for failure to maintain crossing in safe condition as required by this section. Chesapeake & O. R. Co. v. Pope, 296 Ky. 254 , 176 S.W.2d 876, 1943 Ky. LEXIS 150 ( Ky. 1943 ).

Because there was evidence that a gravel drive that crossed railroad tracks was not maintained by the county and that it was rarely used by any one other than a farmer, and because plaintiff deputy produced no evidence that the county in fact maintained the drive, the court agreed with the district court’s conclusion that the gravel drive was private and thus defendant railroad’s duties were minimal unless the crossing were deemed ultra-hazardous. Dugle v. Norfolk Southern Ry., 683 F.3d 263, 2012 FED App. 0192P, 2012 U.S. App. LEXIS 12631 (6th Cir. Ky. 2012 ).

16.— Underpasses and Overpasses.

This section imposes upon a railroad the duty to keep a bridge on its right-of-way in proper condition for public travel and it is immaterial that the bridge was originally built and formerly maintained by town. Illinois C. R. Co. v. Commonwealth, 138 Ky. 742 , 129 S.W. 94, 1910 Ky. LEXIS 125 ( Ky. 1910 ).

County cannot require railroad, at its own expense, to carry a new highway over its track by means of a bridge. Louisville & N. R. Co. v. Hopkins County, 153 Ky. 718 , 156 S.W. 379, 1913 Ky. LEXIS 907 ( Ky. 1913 ).

Railroad’s failure to erect guard rails to a bridge or its approaches where clearly necessary for the safety of travelers is actionable negligence. Cincinnati, N. O. & T. P. R. Co. v. Dungan, 162 Ky. 36 , 171 S.W. 1007, 1915 Ky. LEXIS 11 ( Ky. 1915 ).

The common-law duties of railroads relating to an overhead crossing have neither been repealed nor modified by statute. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where a bridge was constructed by a city for the purpose of connecting two (2) public ways of the city and with the consent of a railroad company it crossed the railroad right-of-way 30 feet above the surface of the earth it was the duty of the railroad company to maintain the bridge in reasonably safe condition for the traveling public. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where a railroad consents to the construction of a public overhead crossing above its tracks, it has duty of maintaining such crossing in a reasonably safe condition for the benefit of the traveling public. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where city, with consent of railroad, constructed overhead bridge crossing railroad, city had primary duty to maintain bridge in proper condition, but railroad was also under duty to see that bridge was properly maintained. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

City was not required to construct through street up to both sides of railroad fill before it could compel railroad to construct underpass, where evidence showed that construction of underpass was only practical way of restoring street. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Railroad must maintain private crossing over which it has constructed overpass. Juett v. Cincinnati, N. O. & T. P. R. Co., 245 Ky. 379 , 53 S.W.2d 551, 1932 Ky. LEXIS 586 ( Ky. 1932 ).

When railroad company destroyed overpass and erected a new one one-fourth (1/4) wider and twice as long, contract of property owner to pay for half the cost of repairing the original overpass terminated. Juett v. Cincinnati, N. O. & T. P. R. Co., 245 Ky. 379 , 53 S.W.2d 551, 1932 Ky. LEXIS 586 ( Ky. 1932 ).

Where railroad in constructing bridge restored approach thereto to its former condition, it was not required to erect or maintain guard on side of approach along river. Christopher's Adm'r v. Louisville & N. R. Co., 259 Ky. 166 , 82 S.W.2d 282, 1935 Ky. LEXIS 285 ( Ky. 1935 ).

17.Restoring Property.

Subsection (2) of this section, providing for restoration of road, does not apply where railroad by purchase or condemnation acquires a private passway, from the owner thereof, as part of its right-of-way. However, the statute does apply if the passageway is an easement in favor of one not the owner of the land over which it runs, and who has not been compensated for its loss. Turner v. Louisville & N. R. Co., 189 Ky. 714 , 225 S.W. 1072, 1920 Ky. LEXIS 503 ( Ky. 1920 ).

Subsection (2) of this section imposes upon a railroad crossing a highway or street the absolute duty of restoring to its former condition any highway or street thus interfered with, and although it is expressly dealing with the whole subject of the duties and responsibilities of the railroad respecting such crossings, it is significantly silent in imposing any duty with respect to the maintenance outside of the right-of-way of such structures as it may be necessary for it to erect in the approaches to the crossing. Fiscal Court of Fulton County v. Nashville, C. & S. L. R. Co., 202 Ky. 846 , 261 S.W. 617, 1924 Ky. LEXIS 831 ( Ky. 1924 ). See Louisville & N. R. Co. v. Commonwealth, 149 Ky. 459 , 149 S.W. 898, 1912 Ky. LEXIS 658 ( Ky. 1912 ).

City may, either under subsection (2) of this section or under common law, compel railroad to restore street with which railroad has interfered in building tracks. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Railroad’s duty to restore streets and highways includes doing whatever may be necessary to effect purpose of statute, whether by means of viaduct, bridge, grade crossing or underpass. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

18.Compensation to Owners.

Damages may be awarded property owners abutting a railroad only when the rights of the owners are unreasonably abridged and the construction and operation of a railroad in a street by a railroad granted the right to use the street gives to abutting owners no cause of action in absence of unreasonable abridgement of their rights. Chesapeake & O. R. Co. v. Kobs, 30 S.W. 6, 17 Ky. L. Rptr. 130 (1895).

Where city addition had been platted, but before streets therein had been accepted railroad was permitted by landowner to lay a switch on what subsequently became city street and switch was subsequently authorized by city ordinance, railroad’s right to maintain switch was not a mere license revocable at will of licensor, but railroad was entitled to continue the maintenance of the switch after acceptance of street by the city only upon payment of damages to adjoining landowner as provided in subsection (3) of this section. Koch v. Kentucky & I. R. & B. Co., 80 S.W. 1133, 26 Ky. L. Rptr. 216 (1904).

19.Taking of Private Property.

Subsection (4) of this section does not give railroads the right to take private property for private purposes without the consent of the owner. It was intended to enable railroads to acquire by consent or condemnation property in a proper state of case upon which it might construct and operate a branch road. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

20.Abandonment of Easement.

Because railroad owned nothing more than a right-of-way easement, upon abandonment of the easement, it could not be obligated to maintain fencing along the easement and its attempt to convey by quit-claim deed a certain stretch of the right-of-way to outside parties was ineffective; present owners of the servient estates hold the underlying strips of land discharged with the easement; owners generally holding to the center of the strip of land comprising the easement to be determined on remand. Illinois Cent. R.R. v. Roberts, 928 S.W.2d 822, 1996 Ky. App. LEXIS 139 (Ky. Ct. App. 1996).

Cited:

Louisville & N. R. Co. v. Owensboro, 238 S.W.2d 148, 1951 Ky. LEXIS 806 ( Ky. 1951 ); Hunt’s Adm’r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ); Louisville & N. R. Co. v. Taylor, 290 S.W.2d 608, 1956 Ky. LEXIS 334 ( Ky. 1956 ).

Research References and Practice Aids

Cross-References.

Cities of fourth class may grant right of way to and regulate operation of railroads, KRS 96.070 .

Condemnation of land by railroads, KRS 416.010 .

Ditch, levee or altered watercourse crossing or affecting railroad track, duties of railroad company concerning, KRS 267.140 , 267.190 , 267.270 , 268.540 .

Grade-crossing elimination, KRS 177.110 to 177.210 .

Railroad to restore road within six months after obstructing, KRS 179.290 .

Kentucky Law Journal.

Proximate Cause — Contributory Negligence — The Last Clear Chance Doctrine — Chesapeake and Ohio Railway Company v. Poe, 33 Ky. L.J. 132 (1945).

1.Contract for Maintenance of Electric Signals.

Contract between department of highway (now department of highways) and railroad under which department agreed to maintain certain electric signaling devices at grade crossings over railroad did not constitute a donation or lending of credit of the state to a private corporation, since the maintenance of such devices are for the promotion of safety for the public who use the highway. Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ).

Research References and Practice Aids

Cross-References.

Counties containing first-class cities, KRS 178.355 .

State, KRS 177.170 .

1.Application.

This section does not apply to the crossing of a trunk railroad by a street railroad. Louisville & N. R. Co. v. Bowling G. R. Co., 110 Ky. 788 , 63 S.W. 4, 23 Ky. L. Rptr. 273 , 1901 Ky. LEXIS 158 ( Ky. 1901 ).

2.Priority of Survey.

The purpose of requiring a map to be filed under this section is to give notice of the location of the right-of-way 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 and where railroad making survey saw stakes of railroad making prior survey the first railroad to survey had priority although it was not the first to record a map of its location. Cumberland R. Co. v. Pine M. R. Co., 96 S.W. 199, 28 Ky. L. Rptr. 574 (1905).

3.Authorization of Railroad to Cross Another.

Under this section the action of railroad commission in authorizing one railroad to cross another under a trestle is conclusive and will not be disturbed on the ground that the trestle may be injured. Chicago, S. L. & N. O. R. Co. v. Louisville & N. R. Co., 58 S.W. 799, 22 Ky. L. Rptr. 658 , 1900 Ky. LEXIS 270 (Ky. Ct. App. 1900).

Research References and Practice Aids

Cross-References.

Aviation, KRS Ch. 183.

Common carrier not to consolidate with or acquire parallel or competing line, Const., § 201.

Motor carriers, KRS Ch. 281.

1.Liability for Injury to Passengers.

Railroad was given the same rights and privileges as supplied to individual holders of ferry franchises under the laws of the state and railroad could not lease ferry to an out-of-state railroad and avoid liability for injury to passengers. Brooker v. Maysville & B. S. R. Co., 119 Ky. 137 , 83 S.W. 117, 26 Ky. L. Rptr. 1022 , 1904 Ky. LEXIS 152 ( Ky. 1904 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Private toll bridges and ferries, KRS Ch. 280.

1.Constitutionality.

This section does not interfere with interstate commerce and does not violate the federal Constitution. Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

2.Written Lease.

The lease required to be recorded by this section is a written lease. Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

3.Indictment.

Indictment for violation of this section need not charge that the lease was a written one but will be sufficient if it follows the language of the statute and expressly charges the commission of the offense. Commonwealth Chesapeake & O. R. Co., 72 S.W. 359, 24 Ky. L. Rptr. 1880 , 1903 Ky. LEXIS 446 (Ky. Ct. App. 1903). See Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

1.Purpose.

The only purpose of signal board is to give travelers on highway notice of railroad crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Purpose of signals and warnings as to railroad crossings is to warn of approach of trains, and railroad has no duty to warn motorists that train is standing on crossing. Sympson v. Southern R. Co., 279 Ky. 619 , 131 S.W.2d 481, 1939 Ky. LEXIS 313 ( Ky. 1939 ).

The purpose of a sign is to warn of the presence of the crossing so that the traveler may be on the lookout for the approach of trains. Gibson v. Louisville & N. R. Co., 382 S.W.2d 568, 1964 Ky. LEXIS 352 ( Ky. 1964 ).

2.Duty to Give Warning.

Where it was not argued that KRS 277.190 and this section were violated it was not required that railroad company, under the facts shown, should have placed servants on each side of the train with lights, so as to warn travelers, or have adopted some other method to notify travelers that a train was standing across the highway. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Motorist who drove into side of freight car standing on illuminated grade crossing could not recover from railroad since railroad had no duty to warn motorists that train was standing on crossing. Sympson v. Southern R. Co., 279 Ky. 619 , 131 S.W.2d 481, 1939 Ky. LEXIS 313 ( Ky. 1939 ).

Railroad has no duty to give warning of approach of its trains to a private crossing or to keep a lookout there, in the absence of proof that crossing was used by public generally in such numbers and for such time as to impose such duty. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Where railroad had provided a standard sign reading “railroad crossing” in letters at least five inches high as required by this section and the crossing was not an extra hazardous one it was not under any duty to provide a flagman or any kind of signal lights and was not guilty of negligence. Bibbs v. Kentucky & I. T. Railroad, 300 S.W.2d 229, 1957 Ky. LEXIS 443 ( Ky. 1957 ).

3.Duty to Employees.

A railroad owes to its employees, who are not themselves responsible for discharging the railroad’s duty of care, the same duty to avoid accidents as it owes to nonemployees. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

4.Public Crossings.

A road only a mile in length, one-half (1/2) of it being upon the land of an individual, and the other half upon the right-of-way of railroad and parallel with its tract over which freight and passenger trains were being operated daily and not dedicated to use by the public or accepted by the county or not shown to be used by the public under right of prescription was not a public road and railroad was under no duty to place and maintain signals. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville, H. & S. L. R. Co. v. Commonwealth, 104 Ky. 35 , 46 S.W. 207, 20 Ky. L. Rptr. 371 , 1898 Ky. LEXIS 127 ( Ky. 1898 ).

Erection of signboard at crossing after collision tended to establish that crossing was a public crossing since railroad is only required to erect signboard at public crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Railroad company was entitled to summary judgment in an action alleging negligent failure to keep a railroad crossing safe and negligent failure to warn the decedent of the approach of the train; the estate failed to show that the railroad crossing should be deemed public for purposes of KRS 277.160 and KRS 277.190 , that the crossing was extra-hazardous or habitually and pervasively used, or that the railroad company violated any of the limited duties at the private crossing. Gaw v. CSX Transp., Inc., 2008 U.S. Dist. LEXIS 23131 (W.D. Ky. Mar. 24, 2008), aff'd, 326 Fed. Appx. 382, 2009 FED App. 0374N, 2009 U.S. App. LEXIS 11334 (6th Cir. Ky. 2009 ).

5.— Duty of Motorist.

Motorist approaching crossing has duty only to use such care as would usually be expected of an ordinary prudent person in driving his car, and to learn of the approach of the train and keep out of its way. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

A railroad crossing is in itself a warning of danger and a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train and if he miscalculates and is injured he is guilty of contributory negligence where there was proper crossing signboard at the crossing. Louisville & N. R. Co. v. Troutman, 351 S.W.2d 516, 1961 Ky. LEXIS 176 ( Ky. 1961 ).

6.Signals.

The character of signals to be given at crossing within incorporated cities is left to the city authorities. Illinois C. R. Co. v. Commonwealth, 108 Ky. 348 , 56 S.W. 409, 21 Ky. L. Rptr. 1779 , 1900 Ky. LEXIS 43 ( Ky. 1900 ).

7.— Failure to Install.

The failure of railroad to install a warning sign of its own was not the proximate cause of the accident where driver stated in his deposition that there was no traffic at the intersection in any direction, that he had no recollection of any parked cars, that he noticed the “stop sign” at the intersection and stopped, looked right and left, saw no traffic and proceeded and the next thing was the impact with the engine and that at no time prior to the impact did he see or hear the engine since under Kentucky law a party will not be heard to say that he looked and did not see what was in plain sight. Bolam v. Louisville & N. R. Co., 295 F.2d 809, 1961 U.S. App. LEXIS 3188 (6th Cir. Ohio 1961).

Where automobile stopped before crossing to see whether train was approaching, failure of railroad to maintain signal board was not negligence since the only purpose of signal board is to give travelers on highway notice of railroad crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Failure to place signal boards would not render railroad liable, where motorist knew railroad crossing and ran into train at night, when signal boards would have served no good purpose. Coil's Adm'x v. Chicago, S. L. & N. O. R. Co., 232 Ky. 33 , 22 S.W.2d 428, 1929 Ky. LEXIS 384 ( Ky. 1929 ).

8.— Failure to Function.

Where signal bell is maintained at crossing, railroad is bound to exercise ordinary care to see that it works, and is liable for injuries to persons using the crossing for its failure to do so. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

Where bell required to be maintained by railroad at crossing became out of order and remained out of order the railroad was not exercising ordinary care owed to employees to avoid a collision. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

Refusal of court to instruct that if plaintiff relied exclusively on failure of electric signals to work, without using ordinary care for his own safety, then he was guilty of contributory negligence, was not error, since it is for jury to determine whether motorist, in proceeding across crossing where signals were not working, was using ordinary care under the circumstances in relying on the failure of the signals. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

Where train approaching crossing was in a cut for some distance, and motorist on highway could not see the train before reaching a point on the highway only 75 or 80 feet from the crossing, and then only when the engine was within 40 or 50 feet of the crossing, and there was evidence that whistle and bell were not sounded until train was within 300 feet of the crossing and that wigwag signal was not working, motorist approaching crossing at 35 miles per hour was not negligent as a matter of law in failing to reduce speed or in failing to observe approach of train until too late to avoid being struck. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

The fact that electric crossing signals are not working does not relieve the motorist of the duty to exercise ordinary care for his safety, but it does diminish the quantum of care considered as ordinary. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

9.— Adequacy.

One sign in the immediate proximity of the tracks easily observable by a traveler approaching from either direction may be adequate. Gibson v. Louisville & N. R. Co., 382 S.W.2d 568, 1964 Ky. LEXIS 352 ( Ky. 1964 ).

10.— Double Tracks.

Person, crossing double track immediately behind train on near track without waiting to see if train was approaching from opposite direction on other track, was not contributorily negligent as matter of law where signal crossing bell that had been ringing had ceased to ring after train on near track had passed. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

11.— Maintenance.

Contract between department of highways and railroad under which department agreed to maintain certain electric signaling devices at grade crossings over railroad did not constitute a donation or lending of credit of the state to a private corporation, since the maintenance of such devices are for the promotion of safety for members of the public who use the highway. Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ).

Cited:

Hunt’s Adm’r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

Opinions of Attorney General.

A city is authorized to require a railroad to erect sign boards at the railroad crossings on city streets inside the city limits. OAG 66-672 .

Research References and Practice Aids

Cross-References.

Buses, duty when approaching railroad crossing, KRS 281.745 .

Motor vehicles, duty when approaching railroad crossing, KRS 189.560 .

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

1.Duty of Railroad.

Failure of railroad commission to require flagman at crossing does not relieve railroad for failure to have flagman where common prudence requires the precaution to be taken. Such failure by commission is not admissible to show due care by railroad. Chesapeake & O. R. Co. v. Gunter, 108 Ky. 362 , 56 S.W. 527, 21 Ky. L. Rptr. 1803 , 1900 Ky. LEXIS 50 ( Ky. 1900 ).

Fact that railroad commission may require gates and flagmen within certain distance of towns does not relieve railroad from using proper means to warn travelers at other crossings. Louisville, H. & S. L. R. Co. v. Lyon, 58 S.W. 434, 22 Ky. L. Rptr. 544 , 1900 Ky. LEXIS 626 ( Ky. 1900 ).

2.Crossings Within City Limits.

Under KRS 96.070 , an ordinance of a city of the fourth class requiring all railroads to erect safety gates at certain street crossings is authorized. Chesapeake & O. R. Co. v. Maysville, 69 S.W. 728, 24 Ky. L. Rptr. 615 , 1902 Ky. LEXIS 324 (Ky. Ct. App. 1902).

Though railroad commission had no authority to require watchman be stationed at crossing in city, in action against railroad for running trains through city at unsafe speed without giving warning at crossings, evidence that watchman was stationed at crossing at request of commission was admissible to show good faith. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, 126 Ky. 712 , 104 S.W. 771, 31 Ky. L. Rptr. 1113 , 1907 Ky. LEXIS 98 ( Ky. 1907 ).

Fifth-class city was without authority to require railroad to erect safety gates at crossings. Chesapeake & O. R. Co. v. Harmon, 153 Ky. 669 , 156 S.W. 121, 1913 Ky. LEXIS 884 ( Ky. 1913 ).

Railroad commission has no authority over crossings within city limits. Chesapeake & O. R. Co. v. Maysville, 69 S.W. 728, 24 Ky. L. Rptr. 615 , 1902 Ky. LEXIS 324 (Ky. Ct. App. 1902). See Chesapeake & O. R. Co. v. Harmon, 153 Ky. 669 , 156 S.W. 121, 1913 Ky. LEXIS 884 ( Ky. 1913 ).

3.Train Standing on Crossing.

Railroad was not negligent in failing to have lights on side of train or box cars stopped on street crossing or to otherwise give warning to the traveling public that the train was occupying the highway crossing. Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Ordinarily a railroad has no duty to warn of the presence of a train standing at a crossing, however, an exception to this rule exists where it has been a custom of the railroad to give a warning and that custom has been certain, definite, uniform and known to travelers. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ).

Where only evidence as to custom of railroad to maintain a flagman and lights at a crossing was that such was the practice during switching operations, the evidence was not sufficient to establish liability of railroad where a full train was standing on the crossing and no switching was being done. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ).

4.Duty of Trainmen.

Where railroad maintains a guard, gates or signal bell at crossing, trainmen only have duty of giving statutory crossing signals. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

ALR

Duty of railroad to maintain flagman at crossing. 24 A.L.R.2d 1161.

1.Purpose.

Duty imposed by this section is for benefit of those on trains. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

2.Liability of Railroad.

Where a collision was caused by failure of an approaching train to stop because of defective brakes, the halting of a train at a point where two (2) railroads cross, in violation of this section, was not the proximate cause of the accident and did not constitute contributory negligence. Louisville & N. R. Co. v. East Tennessee, V. & G. R. Co., 60 F. 993, 1894 U.S. App. LEXIS 2149 (6th Cir. Tenn. 1894).

Railroad failing to stop for crossing in violation of statute was not liable for death of boy, who seeing train coming, started across tracks and fell down, though if train had stopped he would have had time to recover and cross. Greshem's Adm'r v. Louisville & N. R. Co., 24 S.W. 869, 15 Ky. L. Rptr. 599 (1894).

Railroad is not relieved from compliance with this section by reason that it operates all trains that run over two (2) lines where they cross. Chesapeake & O. R. Co. v. Commonwealth, 99 Ky. 175 , 35 S.W. 266, 18 Ky. L. Rptr. 54 , 1896 Ky. LEXIS 62 ( Ky. 1896 ).

3.Indictment.

Indictment under this section alleging that on a certain day defendant failed to stop any of its trains before reaching crossing was not defective, but conviction under the indictment could not be had for more than one offense. Commonwealth v. Chesapeake & O. R. Co., 29 S.W. 136, 16 Ky. L. Rptr. 481 (1895).

1.Purpose.

Signals required by this section are for protection of stock as well as persons on or near a crossing. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ). See Chesapeake & O. R. Co. v. Burton, 156 Ky. 736 , 161 S.W. 1116, 1914 Ky. LEXIS 181 ( Ky. 1914 ); Campbell v. Mobile & O. R. Co., 162 Ky. 58 , 171 S.W. 1002, 1915 Ky. LEXIS 8 ( Ky. 1915 ); Chesapeake & O. R. Co. v. Turley, 192 Ky. 568 , 234 S.W. 188, 1921 Ky. LEXIS 113 ( Ky. 1921 ).

This section is for protection of persons on a hand car rightfully using the track. Illinois C. R. Co. v. McIntosh, 118 Ky. 145 , 80 S.W. 496, 81 S.W. 270, 26 Ky. L. Rptr. 14 , 26 Ky. L. Rptr. 347 , 1904 Ky. LEXIS 17 ( Ky. 1904 ).

This section is for the benefit of the traveling public and must be complied with at all times and under all circumstances, and compliance with its provisions exempts the company from liability for accidents occurring at ordinary public crossings, unless the trainmen see person in danger in time to prevent injury to him. Louisville & N. R. Co. v. Ueltschi's Ex'rs, 97 S.W. 14, 29 Ky. L. Rptr. 1136 (1906).

The warning is not for the benefit of those on the train or elsewhere than at the railway highway crossing. Cincinnati, N. O. & T. P. R. Co. v. Harrod's Adm'r, 132 Ky. 445 , 115 S.W. 699, 1909 Ky. LEXIS 81 ( Ky. 1909 ).

This section is primarily intended for travelers using or intending to use the crossing and the company owes no duty to give the statutory warnings to trespassers upon the track or elsewhere and it does not protect persons driving restive animals on highway near crossing without intending to use crossing. Louisville & N. R. Co. v. Richmond, 202 Ky. 281 , 259 S.W. 329, 1924 Ky. LEXIS 690 ( Ky. 1924 ).

This section is not intended to protect trespassers or licensees on or along side the tracks, and as to them a failure to comply with this section is not negligence. Cooper v. Louisville & N. R. Co., 321 S.W.2d 53, 1959 Ky. LEXIS 264 ( Ky. 1959 ).

2.Application.

Although railroad failing to give required signals for public crossing was liable to persons who used nearby private crossing and who relied on the signals given for the public crossing, this rule did not apply to persons using railroad track. Louisville & N. R. Co. v. Vittitoe's Adm'r, 41 S.W. 269, 19 Ky. L. Rptr. 612 (1897). See Chesapeake & O. R. Co. v. Nipp's Adm'x, 125 Ky. 49 , 100 S.W. 246, 30 Ky. L. Rptr. 1131 , 1907 Ky. LEXIS 253 ( Ky. 1907 ); Cincinnati, N. O. & T. P. R. Co. v. Carter, 180 Ky. 765 , 203 S.W. 740, 1918 Ky. LEXIS 153 ( Ky. 1918 ); Louisville & N. R. Co. v. Horton, 187 Ky. 617 , 219 S.W. 1084, 1920 Ky. LEXIS 178 ( Ky. 1920 ); Louisville & N. R. Co. v. Eversole's Adm'x, 198 Ky. 502 , 248 S.W. 1026, 1923 Ky. LEXIS 470 ( Ky. 1923 ); Chesapeake & O. R. Co. v. Butcher's Adm'r, 263 Ky. 45 , 91 S.W.2d 551, 1936 Ky. LEXIS 128 ( Ky. 1936 ).

This section applied to a crossing which was within the limits of an incorporated city but which was outside of the settled portion thereof, and in effect a county crossing. Louisville & N. R. Co. v. Molloy's Adm'x, 122 Ky. 219 , 91 S.W. 685, 28 Ky. L. Rptr. 1113 , 1906 Ky. LEXIS 40 ( Ky. 1906 ). See Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ).

This section applies only to railroad crossings outside of incorporated cities and villages. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

The statutory duty of signaling imposed by this section is not applicable in cities and towns as it applies only to crossings outside of incorporated cities and towns where the local government regulates the giving of signals. Deitz' Adm'x v. Cincinnati, N. O. & T. P. R. Co., 296 Ky. 279 , 176 S.W.2d 699, 1943 Ky. LEXIS 149 ( Ky. 1943 ).

3.Crossings.

4.— Public.

For a road to be public road with a public crossing it must have been dedicated by deed or result from such use and lapse of time as would constitute a right in an individual by preemption and accepted by the court or town, either upon their records, or by the continued use and recognition of the ground as a highway for such a length of time as would imply an acceptance. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville, H. & S. L. R. Co. v. Commonwealth, 104 Ky. 35 , 46 S.W. 207, 20 Ky. L. Rptr. 371 , 1898 Ky. LEXIS 127 ( Ky. 1898 ).

If crossing is a public one, and in a place where presence of people upon the track may be expected, railroad must give signals, regardless of whether crossing is in an unincorporated town. Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ).

Although a road was used after use and control was discontinued by county court it was not a public crossing within this section. Louisville & N. R. Co. v. Whittle's Adm'rs, 216 Ky. 314 , 287 S.W. 894, 1926 Ky. LEXIS 906 ( Ky. 1926 ), overruled in part, Ellington v. Becraft, 534 S.W.3d 785, 2017 Ky. LEXIS 510 ( Ky. 2017 ).

For a crossing to be a public one the road or street on which it is situated must be a public road or street established either in the manner prescribed by statute or by dedication, and if in the latter manner there must be an acceptance. Deitz' Adm'x v. Cincinnati, N. O. & T. P. R. Co., 296 Ky. 279 , 176 S.W.2d 699, 1943 Ky. LEXIS 149 ( Ky. 1943 ).

Railroad crossing where collision between train and taxicab occurred was deemed a public and not a private crossing, and failure of train to give warning signal of its approach therefore violated this section though railroad had constructed crossing and portion of highway at own expense, on own property, and under contract with coal company, to replace portion of public road destroyed when railroad was built to mining camp, and though crossing had never been accepted by county, since present highway was built to conform with crossing erected by railroad and it was thus presumed that highway was located and built pursuant to subsection (2) of KRS 277.060 , and since railroad had treated crossing as a public one by erecting statutory warning signs. Louisville & N. R. Co. v. Blanton, 304 Ky. 127 , 200 S.W.2d 133, 1947 Ky. LEXIS 597 ( Ky. 1947 ).

This section requires that each locomotive give a signal of its approach at each public crossing, while the general rule has been established that a railway company owes no duty of lookout or warning at private crossings. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

When a private crossing is used by the public generally with the consent of the railroad company, a duty devolves to give warning of the approach of trains; in other words, if a crossing is a public one, there is no doubt about the duty to give warning or signal; if the crossing is a private one and sufficient evidence is introduced to show habitual use of the crossing by the public, then this use may impose the duty of lookout and warning. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

5.— Private.

Railroad was liable to persons injured at private crossing when it failed to give signals for public crossing and persons using the private crossing could hear and relied on the signals required for the public crossing. Cahill v. Cincinnati, N. O. & T. P. R. Co., 92 Ky. 345 , 18 S.W. 2, 13 Ky. L. Rptr. 714 , 1891 Ky. LEXIS 182 ( Ky. 1891 ). See Wilson's Adm'rs v. Chesapeake & O. R. Co., 86 S.W. 690, 27 Ky. L. Rptr. 778 (1905), writ of error dismissed, 214 U.S. 191, 29 S. Ct. 546, 53 L. Ed. 963, 1909 U.S. LEXIS 1907 (U.S. 1909); Chesapeake & O. R. Co. v. Wilson's Adm'r, 102 S.W. 810, 31 Ky. L. Rptr. 500 (1907), writ of error dismissed, 214 U.S. 191, 29 S. Ct. 546, 53 L. Ed. 963, 1909 U.S. LEXIS 1907 (U.S. 1909); Thacker v. Norfolk & W. R. Co., 162 Ky. 337 , 172 S.W. 658, 1915 Ky. LEXIS 64 ( Ky. 1915 ).

Failure to slacken the speed of a train, or to give signals at an approach to private crossings is not negligence. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville & N. R. Co. v. Bodine, 109 Ky. 509 , 59 S.W. 740, 23 Ky. L. Rptr. 147 , 1900 Ky. LEXIS 227 ( Ky. 1900 ); Early's Adm'r v. Louisville, H. & S. L. R. Co., 115 Ky. 13 , 72 S.W. 348, 24 Ky. L. Rptr. 1807 , 1903 Ky. LEXIS 70 ( Ky. 1903 ); Davis's Adm'r v. Chesapeake & O. R. Co., 116 Ky. 144 , 75 S.W. 275, 25 Ky. L. Rptr. 342 , 1903 Ky. LEXIS 180 ( Ky. 1903 ); Hoback's Adm'r v. Louisville H. & S. L. R. Co., 99 S.W. 241, 30 Ky. L. Rptr. 476 (1907); Chesapeake & O. R. Co. v. Hunter's Adm'r, 170 Ky. 4 , 185 S.W. 140, 1916 Ky. LEXIS 6 ( Ky. 1916 ); Louisville & I. R. Co. v. Morgan, 174 Ky. 633 , 192 S.W. 672, 1917 Ky. LEXIS 228 ( Ky. 1917 ); Louisville & I. R. Co. v. Clore, 183 Ky. 261 , 209 S.W. 55, 1919 Ky. LEXIS 482 ( Ky. 1919 ); Simpson v. Louisville, H. & S. L. R. Co., 207 Ky. 623 , 269 S.W. 749, 1925 Ky. LEXIS 149 ( Ky. 1925 ); Hess' Adm'r v. Louisville & N. R. Co., 249 Ky. 624 , 61 S.W.2d 299, 1933 Ky. LEXIS 579 ( Ky. 1933 ).

Only duty of railroad to person crossing at private crossing is to use ordinary care to avoid injuring him after discovering him. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Railroad has no duty to give warning of approach of its trains to a private crossing or to keep a lookout there, in the absence of proof that crossing was used by public generally in such numbers and for such time as to impose such duty. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Train need not signal at private crossing unless it has been customary to give signals and persons using the crossing were accustomed to rely upon the signals. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ). See Louisville & N. R. Co. v. Engleman's Adm'r, 135 Ky. 515 , 122 S.W. 833, 1909 Ky. LEXIS 315 ( Ky. 1909 ); Chesapeake & O. R. Co. v. Young's Adm'r, 146 Ky. 317 , 142 S.W. 709, 1912 Ky. LEXIS 78 ( Ky. 1912 ); Louisville & I. R. Co. v. Cantrell, 175 Ky. 440 , 194 S.W. 353, 1917 Ky. LEXIS 330 ( Ky. 1917 ); Stull's Adm'x v. Kentucky Traction & Terminal Co., 172 Ky. 650 , 189 S.W. 721, 1916 Ky. LEXIS 241 ( Ky. 1916 ).

If the crossing is that of a private road, this section does not require a train to give the specified signal. Chesapeake & O. R. Co. v. Burke's Adm'x, 299 Ky. 851 , 187 S.W.2d 295, 1945 Ky. LEXIS 821 ( Ky. 1945 ), overruled, Collett v. Taylor, 383 S.W.2d 692, 1964 Ky. LEXIS 59 ( Ky. 1964 ).

Railroad company was entitled to summary judgment in an action alleging negligent failure to keep a railroad crossing safe and negligent failure to warn the decedent of the approach of the train; the estate failed to show that the railroad crossing should be deemed public for purposes of KRS 277.160 and KRS 277.190 , that the crossing was extra-hazardous or habitually and pervasively used, or that the railroad company violated any of the limited duties at the private crossing. Gaw v. CSX Transp., Inc., 2008 U.S. Dist. LEXIS 23131 (W.D. Ky. Mar. 24, 2008), aff'd, 326 Fed. Appx. 382, 2009 FED App. 0374N, 2009 U.S. App. LEXIS 11334 (6th Cir. Ky. 2009 ).

6.— City.

It was the duty of the railroad in running its trains through the city to give the signals of its approach to the street crossings required by law and although person was not using the street crossing, he had a right to rely on these signals being given. Louisville & N. R. Co. v. Penrod's Adm'r, 108 Ky. 172 , 56 S.W. 1, 22 Ky. L. Rptr. 73 , 1900 Ky. LEXIS 26 ( Ky. 1900 ).

The bell shall be rung or the whistle sounded at a distance of at least 50 rods from the place where the railroad crosses a public highway upon the same level at every crossing outside of incorporated cities and towns and it is immaterial whether the engine when it arrives at the 50-rod limit is inside or outside of the limits of the town. Illinois C. R. Co. v. Commonwealth, 108 Ky. 348 , 56 S.W. 409, 21 Ky. L. Rptr. 1779 , 1900 Ky. LEXIS 43 ( Ky. 1900 ).

This section gives cities the exclusive power to determine by ordinance what signals shall be given within the corporate limits, whether upon the streets or crossings. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, 126 Ky. 712 , 104 S.W. 771, 31 Ky. L. Rptr. 1113 , 1907 Ky. LEXIS 98 ( Ky. 1907 ).

Where train is within city limits and approaching crossing within city limits it is not required to give signals required by this section. Louisville & N. R. Co. v. Bays' Adm'x, 220 Ky. 458 , 295 S.W. 452, 1927 Ky. LEXIS 558 ( Ky. 1927 ). See Louisville & N. R. Co. v. Galloway, 219 Ky. 595 , 294 S.W. 135, 1926 Ky. LEXIS 128 ( Ky. 1926 ).

The common law duties resting upon a railroad company in cities and towns where streets are occupied or crossed by the railroad tracks require that those in charge of the trains must operate them at a moderate rate of speed, give reasonable and timely warning of the approach of trains, maintain a proper lookout, and take such other precautions as the circumstances and the exercise of ordinary care may demand for the security of life. Louisville & N. R. Co. v. Curtis' Adm'r, 233 Ky. 276 , 25 S.W.2d 398, 1929 Ky. LEXIS 463 ( Ky. 1929 ).

Common-law duty to warn of approaching train was discharged where railroad had constructed and maintained, in good working order, an automatic crossing signal at crossing within city limits; sounding of bell and whistle on locomotive was unnecessary. Louisville & N. R. Co. v. Craig, 310 Ky. 43 , 219 S.W.2d 954, 1948 Ky. LEXIS 1088 ( Ky. 1948 ).

Where provisions of this section were inapplicable because accident occurred at crossing within city limits, and no city ordinance prescribing signals was introduced in evidence, railroad was required to give only warning required by common law. Louisville & N. R. Co. v. Craig, 310 Ky. 43 , 219 S.W.2d 954, 1948 Ky. LEXIS 1088 ( Ky. 1948 ).

7.— Dangerous.

If railroad knew or should have known that crossing was unusually dangerous and that statutory signals and warnings were not sufficient to give notice of approach of trains, it was under duty to use such other means to prevent injury to travelers at said crossing as, in the exercise of a reasonable judgment by ordinarily prudent persons operating the railroad might be considered necessary. Louisville & N.R. Co. v. Lucas' Adm'r, 98 S.W. 308, 30 Ky. L. Rptr. 359 , 1906 Ky. LEXIS 297 (Ky. Ct. App. 1906).

Trainmen must not only give statutory signals for exceptionally dangerous crossings, but also employ such other methods to warn travelers of approach of trains as prudent persons operating trains would consider necessary. Cincinnati, N. O. & T. P. R. Co. v. Champ, 104 S.W. 988, 31 Ky. L. Rptr. 1054 (1907). See Louisville & N. R. Co. v. Kimble's Adm'x, 140 Ky. 759 , 131 S.W. 790, 1910 Ky. LEXIS 359 ( Ky. 1910 ); Southern R. Co. v. Thacker's Adm'x, 156 Ky. 483 , 161 S.W. 236, 1913 Ky. LEXIS 455 ( Ky. 1913 ); Kentucky Traction & Terminal Co. v. Wilson, 165 Ky. 123 , 176 S.W. 991, 1915 Ky. LEXIS 500 ( Ky. 1915 ); Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337 , 200 S.W. 634, 1918 Ky. LEXIS 226 ( Ky. 1918 ); Louisville & N. R. Co. v. Scott's Adm'r, 184 Ky. 319 , 211 S.W. 747, 1919 Ky. LEXIS 55 ( Ky. 1919 ); Louisville & N. R. Co. v. Staebler, 184 Ky. 730 , 212 S.W. 919, 1919 Ky. LEXIS 122 ( Ky. 1919 ); Louisville & N. R. Co. v. Adams' Adm'r, 205 Ky. 203 , 265 S.W. 623, 1924 Ky. LEXIS 83 ( Ky. 1924 ).

The sound of train whistle or bell is not sufficient if a crossing is unusually dangerous or much traveled and railroad must use such other means to prevent injury as a prudent person would ordinarily use. Adkisson's Adm'r v. Louisville, H. & S. L. R. Co., 110 S.W. 284, 33 Ky. L. Rptr. 204 (1908). See Franklin v. Louisville & N. R. Co., 267 Ky. 577 , 102 S.W.2d 1010, 1937 Ky. LEXIS 349 ( Ky. 1937 ).

Where the crossing is dangerous, an increased duty devolves upon both the traveler and the railroad, to avoid receiving or giving injury, in proportion to the increase of the danger. Piersall's Adm'r v. Chesapeake & O. R. Co., 180 Ky. 659 , 203 S.W. 551, 1918 Ky. LEXIS 131 ( Ky. 1918 ).

Where crossing is so unusually dangerous because of obstruction to sight or hearing as to render statutory precautions insufficient to give warning of the train’s approach, the exercise of ordinary care demands of the company that other precautions commensurate with the danger shall be taken to avoid injury to members of the public using or about to use the crossing regardless of whether the obstruction to sight or hearing is a natural obstruction or has been placed or allowed to remain by the company upon its right of way. Louisville & N. R. Co. v. Locker's Adm'r, 182 Ky. 578 , 206 S.W. 780, 1918 Ky. LEXIS 398 ( Ky. 1918 ).

Railroad is required to take other precautionary measures than giving ordinary signals only at a crossing exceptionally dangerous and which is extensively traveled. Milner v. Evansville R. Co., 188 Ky. 14 , 221 S.W. 207, 1920 Ky. LEXIS 222 ( Ky. 1920 ).

The ordinary crossing signals required by this section, if insufficient to warn traveler at unusually dangerous crossing, do not relieve railroad from liability to a person on the crossing who was not guilty of contributory negligence. Illinois C. R. Co. v. Peebles, 216 Ky. 9 , 287 S.W. 574, 1926 Ky. LEXIS 880 ( Ky. 1926 ).

If crossing is hazardous and much used by public to knowledge of train crew, crew has duty, in addition to ringing bell and sounding whistle, to use such other means to avoid injuring those using crossing as prudent person would use. Hopper v. Barren Fork Coal Co., 263 Ky. 446 , 92 S.W.2d 776, 1936 Ky. LEXIS 201 ( Ky. 1936 ).

8.— Train Standing on Crossing.

Failure to give signals required by this section would not render railroad liable where motorist ran into train standing across highway, and, in view of motorist’s speed, no amount of signals given before train was placed on crossing would have prevented accident. Coil's Adm'x v. Chicago, S. L. & N. O. R. Co., 232 Ky. 33 , 22 S.W.2d 428, 1929 Ky. LEXIS 384 ( Ky. 1929 ).

Railroad was not bound to place employees with lights on each side of train or adopt some other method of notifying travelers that a train was standing across the highway where all signs and warnings required by statute were given. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Where it was not argued that KRS 277.160 and this section were violated it was not required that railroad company under the facts shown, should have placed servants on each side of the train with lights, so as to warn travelers, or have adopted some other method to notify travelers that a train was standing across the highway. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

When a train or car is actually occupying the crossing, this in itself is effective and adequate warning to travelers on the highway. Louisville & N. R. Co. v. Branson, 267 S.W.2d 945, 1954 Ky. LEXIS 885 ( Ky. 1954 ).

9.Warnings.

Handcar need not give a signal when approaching a crossing. Louisville & N. R. Co. v. Howerton, 115 Ky. 89 , 72 S.W. 760, 24 Ky. L. Rptr. 1905 , 1903 Ky. LEXIS 80 ( Ky. 1903 ).

The railroad may either ring the bell continuously or sound the whistle continuously before reaching the crossing; and it is not liable if any person or animal is put in peril by the noise, when trainmen do not discover and are not under duty to discover peril. It is immaterial whether whistle is coarse, loud or shrill. Louisville & N. R. Co. v. McCandless, 123 Ky. 121 , 93 S.W. 1041, 29 Ky. L. Rptr. 563 , 1906 Ky. LEXIS 126 ( Ky. 1906 ).

It is not negligence to sound the whistle during the time required by this section, unless trainmen discover that sounding the whistle is causing animal on parallel highway to become frightened. Rowe v. Louisville & N. R. Co., 143 Ky. 823 , 137 S.W. 511, 1911 Ky. LEXIS 502 ( Ky. 1911 ).

The same warnings must be given by interurban railroads as by steam trains. Bohmer's Adm'x v. Kentucky Traction & Terminal Co., 212 Ky. 524 , 279 S.W. 955, 1925 Ky. LEXIS 1129 ( Ky. 1925 ). See Commonwealth v. Louisville & E. R. Co., 141 Ky. 583 , 133 S.W. 230, 1911 Ky. LEXIS 39 ( Ky. 1911 ).

10.— Duties of Railroad.

Railroad had no duty to keep lookout on highway parallel to railroad and fact railroad employees might, by ordinary care, have discovered team had become frightened by whistle for crossing and substituted ringing of bell would not render railroad liable. Louisville & N. R. Co. v. Smith, 107 Ky. 178 , 53 S.W. 269, 21 Ky. L. Rptr. 857 , 1899 Ky. LEXIS 152 ( Ky. 1899 ).

Fact that railroad crossings are protected by gates or a flagman does not relieve those in charge of the train of the duty to exercise ordinary care in approaching crossings to prevent accident to persons at the crossing or the duty to give statutory signals where they are required or other warning where the statutory signals are not required. Cross v. Illinois C. R. Co., 110 S.W. 290, 33 Ky. L. Rptr. 432 (1908).

Stationary bell or gate at crossing does not relieve trainmen of giving usual and ordinarily required signals. Louisville & N. R. Co. v. Adams' Adm'r, 205 Ky. 203 , 265 S.W. 623, 1924 Ky. LEXIS 83 ( Ky. 1924 ).

Railroad may not exonerate itself of giving train signals on approaching a grade crossing by any sort of local precautions to warn travelers that it may establish at the crossing. Louisville & N. R. Co. v. Jameson's Adm'x, 214 Ky. 552 , 283 S.W. 1026, 1926 Ky. LEXIS 400 ( Ky. 1926 ).

Although this section was passed prior to use of automobiles, the railroad is not required to give other danger signals at crossings than those required by this section. Land v. Cincinatti, N. O. & T. P. R. Co., 226 Ky. 374 , 10 S.W.2d 1084, 1928 Ky. LEXIS 85 ( Ky. 1928 ).

After trainmen discover animals on highway parallel with tracks are being frightened by train, they must use ordinary care not to increase the fright of the animals. Robinson v. Chesapeake & O. R. Co., 227 Ky. 458 , 13 S.W.2d 500, 1929 Ky. LEXIS 902 ( Ky. 1929 ).

Railroad companies and their employees are only required to exercise ordinary care for the protection of highway travelers. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

Having once installed an electric warning signal it is the duty of a railroad company to exercise ordinary care to have the signal in reasonably effective working condition so as to give reasonable warning of the approach of a train to the crossing. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Duty of railroad company regarding warning of approach of trains is to provide such means and take such steps as an ordinarily prudent man would do in the same or similar circumstances. Louisville & N. R. Co. v. Marshall's Adm'x, 289 Ky. 129 , 158 S.W.2d 137, 1942 Ky. LEXIS 506 ( Ky. 1942 ).

The duties of a railroad company are defined in part by statute, in part by common law, and sometimes by city ordinances and even though an engineer blew the whistle as a warning he was negligent in not reducing his speed when approaching a crossing on a dark, foggy night. Illinois C. R. Co. v. Arms, 361 S.W.2d 506, 1962 Ky. LEXIS 243 ( Ky. 1962 ).

11.— — Reliance by Travelers.

Motorist has the right to place some reliance upon a train crew giving the signals which the Kentucky law prescribes. Baird v. Cincinnati, N. O. & T. P. R. Co., 315 F.2d 717, 1963 U.S. App. LEXIS 5676 (6th Cir. Ky. 1963 ).

Travelers crossing railroad are not required to stop, look and listen, but are entitled to rely on statutory signals being given by trainmen. Louisville, H. & S. L. R. Co. v. Sanders' Adm'r, 92 S.W. 937, 29 Ky. L. Rptr. 212 (1906). See Chesapeake & O. R. Co. v. Hawkins, 124 S.W. 836, 1910 Ky. LEXIS 679 ( Ky. 1910 ); Barksdale's Adm'r v. Southern R. Co., 199 Ky. 592 , 251 S.W. 656, 1923 Ky. LEXIS 884 ( Ky. 1923 ); Cincinnati, N. O. & T. P. R. Co. v. Howe's Adm'r, 207 Ky. 769 , 270 S.W. 57, 1925 Ky. LEXIS 180 ( Ky. 1925 ); Cox's Adm'r v. Cincinnati, N. O. & T. P. R. Co., 238 Ky. 312 , 37 S.W.2d 859, 1931 Ky. LEXIS 232 ( Ky. 1931 ); Louisville & N. R. Co. v. Ratliff's Adm'r, 260 Ky. 380 , 85 S.W.2d 1006, 1935 Ky. LEXIS 478 ( Ky. 1935 ); Hopper v. Barren Fork Coal Co., 263 Ky. 446 , 92 S.W.2d 776, 1936 Ky. LEXIS 201 ( Ky. 1936 ); Cincinnati, N. O. & T. P. R. Co. v. Fox, 269 Ky. 242 , 106 S.W.2d 973, 1937 Ky. LEXIS 582 ( Ky. 1937 ).

Travelers upon a public highway contiguous to a railway crossing, driving horses afraid of cars have a right to rely upon the employees of the railroad to give the statutory warnings in approaching the crossing in order that they may take such precautions as are necessary to protect themselves from injury. Louisville & A. R. Co. v. Davis, 96 S.W. 533, 29 Ky. L. Rptr. 846 (1906).

A traveler upon the highway is not entitled, under all circumstances and conditions, to rely upon the efficiency of an electric warning signal to warn him that a train is approaching the crossing; he must exercise ordinary care in looking for trains. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Failure to signal where traveler knows of approach of train, will not give rise to cause of action by traveler, or support charge of negligence, based on failure to signal. Louisville & N. R. Co. v. Penrod's Adm'r, 108 Ky. 172 , 56 S.W. 1, 22 Ky. L. Rptr. 73 , 1900 Ky. LEXIS 26 ( Ky. 1900 ). See Illinois C. R. Co. v. Willis, 123 Ky. 636 , 97 S.W. 21, 29 Ky. L. Rptr. 1187 , 1906 Ky. LEXIS 196 (Ky. Ct. App. 1906); Illinois C. R. Co. v. Dupree, 138 Ky. 459 , 128 S.W. 334, 1910 Ky. LEXIS 92 ( Ky. 1910 ); Chesapeake & O. R. Co. v. Williams' Adm'r, 148 Ky. 178 , 146 S.W. 381, 1912 Ky. LEXIS 404 ( Ky. 1912 ); Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ); Stull's Adm'x v. Kentucky Traction & Terminal Co., 172 Ky. 650 , 189 S.W. 721, 1916 Ky. LEXIS 241 ( Ky. 1916 ); Louisville & N. R. Co. v. Shaw's Adm'x, 264 Ky. 321 , 94 S.W.2d 642, 1936 Ky. LEXIS 308 ( Ky. 1936 ); Cincinnati, N. O. & T. P. R. Co. v. Wallace's Adm'r, 267 Ky. 661 , 103 S.W.2d 91, 1937 Ky. LEXIS 369 ( Ky. 1937 ); Chesapeake & O. R. Co. v. Bryant's Adm'r, 272 Ky. 339 , 114 S.W.2d 89, 1937 Ky. LEXIS 699 ( Ky. 1937 ); Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ); Chesapeake & O. R. Co. v. Boyd's Adm'r, 290 Ky. 9 , 160 S.W.2d 342, 1942 Ky. LEXIS 349 ( Ky. 1942 ).

12.— Failure to Warn.

Where because of factors beyond his control, a motorist’s opportunity to discover danger is impaired, he should not, as a matter of law, be barred from recovery because he did not insure his own safety by stopping or employing extra caution that reasonably careful driver would use had he reason to anticipate a failure of train crew to counterbalance his disadvantages by signaling as law required it to do. Baird v. Cincinnati, N. O. & T. P. R. Co., 315 F.2d 717, 1963 U.S. App. LEXIS 5676 (6th Cir. Ky. 1963 ).

Evidence that a person is killed at crossing where signals are required to be given and that train did not give statutory or customary signals is sufficient to take case to jury. Kelsch's Guardian v. Chesapeake & O. R. Co., 251 Ky. 332 , 64 S.W.2d 886, 1933 Ky. LEXIS 848 ( Ky. 1933 ). See Illinois Cent. Illinois C. R. Co. v. Henry, 255 Ky. 434 , 74 S.W.2d 689, 1934 Ky. LEXIS 255 ( Ky. 1934 ); Amburgy's Adm'x v. Chesapeake & O. R. Co., 272 Ky. 571 , 114 S.W.2d 1093, 1938 Ky. LEXIS 163 ( Ky. 1938 ).

That the railroad failed to give the warnings required either by statute or by the common law does not necessarily mean that there must therefore be a jury question as to whether, under all the circumstances of the case, there was enough warning to alert the ordinarily prudent traveler approaching on the intersecting thoroughfare. Hargadon v. Louisville & N. R. Co., 375 S.W.2d 834, 1963 Ky. LEXIS 194 ( Ky. 1963 ).

13.— — Negligence.

Failure of trainmen to give statutory signals may be shown under allegation of general negligence. Nashville, C. & S. L. R. Co. v. Higgins, 92 S.W. 549, 29 Ky. L. Rptr. 89 (1906). See Chesapeake & O. R. Co. v. Coates, 271 Ky. 736 , 113 S.W.2d 28, 1937 Ky. LEXIS 264 ( Ky. 1937 ).

Failure of railroad to give crossing signal required by this section is actionable negligence. Louisville, H. & S. L. R. Co. v. Sanders' Adm'r, 92 S.W. 937, 29 Ky. L. Rptr. 212 (1906). See Louisville & N. R. Co. v. Joshlin, 110 S.W. 382, 33 Ky. L. Rptr. 513 (1908); Conway v. Louisville & N. R. Co., 135 Ky. 229 , 119 S.W. 206, 1909 Ky. LEXIS 252 ( Ky. 1909 ); Illinois C. R. Co. v. Moss' Adm'r, 142 Ky. 658 , 134 S.W. 1122, 1911 Ky. LEXIS 250 ( Ky. 1911 ); Davis v. Davis, 195 Ky. 522 , 242 S.W. 870, 1922 Ky. LEXIS 365 ( Ky. 1922 ), overruled, Louisville & N. R. Co. v. Dunn, 380 S.W.2d 241, 1964 Ky. LEXIS 295 ( Ky. 1964 ); Western Collieries Co. v. Rhye, 209 Ky. 559 , 273 S.W. 91, 1925 Ky. LEXIS 544 ( Ky. 1925 ); Hertell's Adm'x v. Louisville & N. R. Co., 215 Ky. 639 , 286 S.W. 693, 1926 Ky. LEXIS 756 ( Ky. 1926 ); Big S. & K. R. R. Co. v. Blair, 224 Ky. 367 , 6 S.W.2d 453, 1928 Ky. LEXIS 602 ( Ky. 1928 ).

A railroad does not relieve itself of negligence as imputed by KRS 277.330 until it shows it has given the signals for crossings as provided by this section since this section is sufficiently broad to hold the company negligent for a failure to observe its provisions whether men or stock may be killed or injured at a grade crossing if its provisions are violated. Campbell v. Mobile & O. R. Co., 154 Ky. 582 , 157 S.W. 931, 1913 Ky. LEXIS 107 ( Ky. 1913 ).

Failure to give signals required by this section is not gross negligence per se which would entitle to recovery of punitive damages. Schmid's Adm'r v. Louisville & N. R. Co., 155 Ky. 237 , 159 S.W. 786, 1913 Ky. LEXIS 236 ( Ky. 1913 ).

Violation of city ordinance requiring crossing gong or signal was negligence. Louisville & N. R. Co. v. Louisville Provision Co., 212 Ky. 709 , 279 S.W. 1100, 1926 Ky. LEXIS 222 ( Ky. 1926 ).

Railroad was not negligent where fireman shouted to engineer to stop the train and did not tell him to sound the whistle when he saw that an automobile about 12 to 14 feet from the track traveling approximately five miles an hour was not going to stop. Chesapeake & O. R. Co. v. Harrell's Adm'r, 258 Ky. 650 , 81 S.W.2d 10, 1934 Ky. LEXIS 586 ( Ky. 1934 ).

14.— Sufficiency of Warning.

Where a railroad track crosses a public highway on a trestle, it is the duty of those in charge of a train approaching the crossing to give some warning of its approach for the protection of those who might be riding or driving on the highway, that they might secure themselves against injury by reason of the frightening of their horses, and the question of whether or not the failure to give such warning is negligence should be left to the decision of the jury. Chesapeake & N. R. Co. v. Ogles, 73 S.W. 751, 24 Ky. L. Rptr. 2160 (1903).

Statutory signals are generally considered a sufficient warning of the approach of a train to an ordinary crossing in the country when a lookout is also maintained. Piersall's Adm'r v. Chesapeake & O. R. Co., 180 Ky. 659 , 203 S.W. 551, 1918 Ky. LEXIS 131 ( Ky. 1918 ).

A signal of train’s approach which was ordinarily sufficient to give notice of its coming to persons who were themselves exercising ordinary care for their own safety and in possession of their ordinary faculties was reasonable. Simpson v. Louisville, H. & S. L. R. Co., 207 Ky. 623 , 269 S.W. 749, 1925 Ky. LEXIS 149 ( Ky. 1925 ).

Either the ringing of the bell or the blowing of the whistle is sufficient to comply with this section. Louisville & N. R. Co. v. Frye, 246 S.W.2d 458, 1952 Ky. LEXIS 631 (Ky. Ct. App. 1952).

15.Contributory Negligence.

If person crossing railroad is contributorily negligent, he does not thereby become a trespasser and thereby forfeit the protection of the law, but the railroad will be liable if the injury might have been averted by ordinary care. Louisville & N. R. Co. v. Taylor's Adm'r, 104 S.W. 776, 31 Ky. L. Rptr. 1142 (1907).

When ordinary signals are not given and lookout is not maintained, the rule is that the question of contributory negligence will ordinarily be left to the jury. Louisville & N. R. Co. v. Taylor's Adm'r, 104 S.W. 776, 31 Ky. L. Rptr. 1142 (1907).

It is not negligence per se to drive a balky or excitable horse upon a railroad crossing. Louisville & N. R. Co. v. O'Nan's Adm'r, 119 S.W. 1192 ( Ky. 1909 ).

The statutory signals at public crossings are mandatory, and may be said to be the minimum of duty to be exercised by enginemen outside of incorporated cities and towns, notwithstanding railroad has an electric bell at the crossing. However, if traveler is warned by other signals and disregards them he is guilty of contributory negligence. Chesapeake & O. R. Co. v. Stone's Adm'r, 200 Ky. 502 , 255 S.W. 134, 1923 Ky. LEXIS 141 ( Ky. 1923 ).

Where injuries are received at a public crossing, for which the required signals were not given, and nothing is shown against the injured person indicating lack of care on his part, other than that he failed to “stop, look, and listen,” he cannot be said to have been guilty of negligence as a matter of law. Louisville & N. R. Co. v. Cooper, 296 Ky. 307 , 176 S.W.2d 693, 1943 Ky. LEXIS 146 ( Ky. 1943 ).

Where, in case involving automobile being struck by east-bound passenger train at crossing within city, automobile having started across track after westbound freight train cleared the crossing, the plaintiff and his witnesses testified that the electric flash signals ceased to flash as soon as the freight train had cleared the crossing and that the bell on the passenger locomotive was not ringing, plaintiff could not be held contributorily negligent as a matter of law, notwithstanding testimony of engineer and fireman that bell was ringing and flash signal was still flashing. Kentucky & I. T. R. Co. v. Cantrell, 298 Ky. 743 , 184 S.W.2d 111, 1944 Ky. LEXIS 1004 ( Ky. 1944 ).

Where required signals are not given by railroad, and motorist has exercised ordinary care except in failing to “stop, look and listen,” motorist cannot be held contributorily negligent as a matter of law. Kentucky & I. T. R. Co. v. Cantrell, 298 Ky. 743 , 184 S.W.2d 111, 1944 Ky. LEXIS 1004 ( Ky. 1944 ).

Even though a railroad may have been guilty of negligence in failing to comply with this section the plaintiff could not recover where she was contributorily negligent where she drove onto the crossing without looking for the train and thereafter stalled her car in trying to move from the crossing after the approaching train was called to her attention. Norfolk & W. R. Co. v. Bailey, 307 Ky. 386 , 211 S.W.2d 154, 1948 Ky. LEXIS 747 ( Ky. 1948 ).

16.Proximate Cause.

Where deceased had not been struck by the front part of the engine, but had completed his crossing of the railroad tracks, was in a place of safety, and must necessarily have been aware of the approach of the train, the omitted warning signals could have added nothing to that awareness and failure to give them was not the proximate cause of his death. Cincinnati, N.O.&T.P.R.Co. v. Eller, 197 F.2d 652, 1952 U.S. App. LEXIS 2667 (6th Cir. Ky.), cert. denied, 344 U.S. 864, 73 S. Ct. 105, 97 L. Ed. 670, 1952 U.S. LEXIS 1629 (U.S. 1952).

Failure to give signals at crossing will not make railroad liable for injuries caused by horse being frightened by train after the crossing has been made in safety. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ).

Where plaintiff rode upon track at railroad crossing, where deep cut prevented view of approaching train, which was within 15 or 20 feet of crossing and horse was frightened and plaintiff injured if plaintiff went upon track because of failure of trainmen to give signal, such failure was proximate cause of plaintiff’s injury. Illinois C. R. Co. v. Mizell, 100 Ky. 235 , 38 S.W. 5, 18 Ky. L. Rptr. 738 , 1896 Ky. LEXIS 164 ( Ky. 1896 ).

Railroad is not liable unless failure to give signal is proximate cause of injury. Louisville & N. R. Co. v. Onan's Adm'r, 110 S.W. 380, 33 Ky. L. Rptr. 462 (1908). See Louisville & N. R. Co. v. Lewis, 212 Ky. 460 , 279 S.W. 657, 1926 Ky. LEXIS 171 ( Ky. 1926 ); Goldberg v. Chesapeake & O. R. Co., 211 Ky. 115 , 276 S.W. 1087, 1925 Ky. LEXIS 822 ( Ky. 1925 ); Chesapeake & O. R. Co. v. Goodman's Adm'x, 218 Ky. 117 , 290 S.W. 1054, 1927 Ky. LEXIS 99 ( Ky. 1927 ); Chesapeake & O. R. Co. v. Bryant's Adm'r, 272 Ky. 339 , 114 S.W.2d 89, 1937 Ky. LEXIS 699 ( Ky. 1937 ).

Evidence that body of deceased was found lying between tracks was insufficient for jury, notwithstanding evidence of failure to give crossing signals as there was nothing from which jury could reasonably infer that this failure, if it existed, was the proximate cause of the injury to decedent. Chesapeake & O. R. Co. v. Butcher's Adm'r, 263 Ky. 45 , 91 S.W.2d 551, 1936 Ky. LEXIS 128 ( Ky. 1936 ).

Failure of railroad to give statutory signals was not a proximate cause of injury to pedestrian crossing tracks, where pedestrian knew that train was approaching and stepped in path of train without looking. Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ).

Traveler may rely upon train giving statutory signals, and need not stop, look and listen before proceeding to cross tracks, but where he knows train is approaching, he cannot base his right of action on antecedent negligence of railroad in failing to give signals since it is not the proximate cause of his injuries. Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ).

In action for injuries against railroad, the giving of bell and whistle signals as the train approaches crossing has no other relevancy except to notify travelers on or across the track of the train’s approach, and if traveler knows of its approach when he enters the track, failure to give signals is immaterial since it is not the proximate cause of the injuries. Louisville & N. R. Co. v. Brock's Adm'r, 281 Ky. 240 , 135 S.W.2d 898, 1940 Ky. LEXIS 18 ( Ky. 1940 ).

17.Last Clear Chance.

Where plaintiff chose to plead specific omissions and from testimony it was made doubtful that there was a constant or alternate giving of “statutory signals” and pleadings did not contain general allegations of negligence an instruction on the last clear chance or discovered peril doctrine was erroneous. Southern R. Co. v. Stanaford's Adm'x, 275 Ky. 78 , 120 S.W.2d 768, 1938 Ky. LEXIS 371 ( Ky. 1938 ).

Railroad was not liable under last clear chance doctrine for death of pedestrian crossing track in the daytime where the evidence was conflicting as to whether the statutory signals were duly given and the pedestrian was contributorily negligent in failing to keep a lookout and the railroad operatives could not have done anything to avoid the accident after the pedestrian’s inattentiveness was realized. Cincinnati, N. O. & T. P. R. Co. v. Wood, 392 S.W.2d 437, 1965 Ky. LEXIS 276 ( Ky. 1965 ).

18.Procedure.

Indictment stating the fact that the place where violation of this section occurred was a crossing at grade of railroad and a “public highway” was sufficient and it was not necessary to state when and by what authority the public highway was established. Chesapeake & O. R. Co. v. Commonwealth, 43 S.W. 445, 19 Ky. L. Rptr. 1345 (1897).

A railroad company is entitled to be advised by the pleadings as to which one of the theories the claimant will rely upon, that is, whether it was a public crossing or a private crossing used by the public generally. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

19.Evidence.

Whether positive testimony that signals were given outweighs negative testimony of others that they did not hear it and overwhelms it by superior weight is a question for the jury. Louisville & N. R. Co. v. O'Nan's Adm'r, 119 S.W. 1192 ( Ky. 1909 ). See Chesapeake & O. R. Co. v. Brashear's Adm'x, 124 S.W. 277, 1910 Ky. LEXIS 663 ( Ky. 1910 ); Chesapeake & O. R. Co. v. Hawkins, 124 S.W. 836, 1910 Ky. LEXIS 679 ( Ky. 1910 ).

Negative testimony, to the effect that witness did not hear whistle, may be given some weight. Mossbarger's Adm'x v. Louisville & N. R. Co., 279 Ky. 178 , 130 S.W.2d 54, 1939 Ky. LEXIS 257 ( Ky. 1939 ).

Question whether engineer failed to blow whistle on approaching crossing was for the jury, where evidence was conflicting. Mossbarger's Adm'x v. Louisville & N. R. Co., 279 Ky. 178 , 130 S.W.2d 54, 1939 Ky. LEXIS 257 ( Ky. 1939 ).

Where numerous witnesses testified, some stating that whistle was blown beginning 50 rods from crossing and continuously thereafter, and that wigwag signal at crossing was operating, and others stating that wigwag was not operating and that whistle was not blown until just before train reached crossing, the question of negligence was for the jury, notwithstanding that some of testimony of plaintiff’s witnesses was “negative” in that it consisted only of statements that witnesses did not hear whistle and did not see wigwag in operation. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

Plaintiff’s testimony that neither whistle nor bell was sounded was insufficient to take case to jury where there was positive and direct testimony of railroad employees and eight disinterested witnesses that not only was the bell rung and the whistle sounded but both created unusual noise and warning of the approach of the train to the crossing. Fryrear v. Kentucky & I. T. R. Co., 310 Ky. 250 , 220 S.W.2d 546, 1949 Ky. LEXIS 887 ( Ky. 1949 ).

Where 14 witnesses testified train gave adequate warning of its approach at crossing by sounding its whistle or ringing its bell trial court was properly exercising a judicial function when it determined as a matter of law that a true jury issue was not presented with respect to the violation of statutory duties by the railroad company because plaintiff’s was not of sufficient probative value. Wadkins' Adm'x v. Chesapeake & O. R. Co., 298 S.W.2d 7, 1956 Ky. LEXIS 33 ( Ky. 1956 ).

There was sufficient evidence to support trial court’s finding that no bell or whistle was sounded to give warning of the train’s approach which should have been done within 50 rods of the crossing. Louisville & N. R. Co. v. Worthington, 354 S.W.2d 755, 1962 Ky. LEXIS 52 ( Ky. 1962 ).

Where the evidence was conflicting as to whether any warning was given by a bell or whistle as train approached crossing it was not erroneous to give instructions concerning the duty under this section to ring bell or sound whistle. Blair v. Louisville & N. R. Co., 390 S.W.2d 178, 1965 Ky. LEXIS 345 ( Ky. 1965 ).

20.— Burden of Proof.

In action for death caused by violation of this section, plaintiff has burden of showing that the crossing was not in an incorporated city or village. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

21.— Electric Warning Signal.

Evidence that electric bell at crossing was in perfect working order and actually operating on morning following accident was admissible. Kelsch's Guardian v. Chesapeake & O. R. Co., 251 Ky. 332 , 64 S.W.2d 886, 1933 Ky. LEXIS 848 ( Ky. 1933 ).

Evidence is admissible to show that an electric warning signal at a railroad crossing was not working after the accident occurred and on the same day, if there is no evidence that conditions had changed before the accident. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Evidence that an electric warning signal was not working properly a week before an accident occurred at the crossing, is admissible for the purpose of showing that the railroad company had notice of the condition of the signal. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

22.Instructions.

Where plaintiff alleged her horse became frightened at train and no signal was given at dangerous crossing, the question was whether horse became frightened by railroad’s failure to give warning of approach of train and not whether railroad company carelessly and negligently frightened plaintiff’s horse and the jury should have been so instructed. Chesapeake & O. R. Co. v. Gunter, 108 Ky. 362 , 56 S.W. 527, 21 Ky. L. Rptr. 1803 , 1900 Ky. LEXIS 50 ( Ky. 1900 ).

Instruction that railroad was required to give notice of approach of engine and train to the crossing where plaintiff claimed he was injured by blowing the whistle or ringing the bell did not impose the care required by this section. Nashville, C. & S. L. R. Co. v. Higgins, 92 S.W. 549, 29 Ky. L. Rptr. 89 (1906).

An instruction was technically incorrect where it charged the railroad with the duty to ring the bell or blow the whistle continuously. Chesapeake & O. R. Co. v. Stone's Adm'r, 200 Ky. 502 , 255 S.W. 134, 1923 Ky. LEXIS 141 ( Ky. 1923 ).

Instruction, requiring train to sound whistle not less than 50 rods from city crossing, following this section, was erroneous. Louisville & N. R. Co. v. Thompson's Adm'r, 217 Ky. 21 , 288 S.W. 761, 1926 Ky. LEXIS 3 ( Ky. 1926 ).

Instruction as to duty of railroad to give signals should state that warning of approach of train should be given “by ringing the bell or sounding the whistle.” Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

Cited:

Louisville & N. R. Co. v. Troutman, 351 S.W.2d 516, 1961 Ky. LEXIS 176 ( Ky. 1961 ); Allen v. Arnett, 525 S.W.2d 748, 1975 Ky. LEXIS 109 ( Ky. 1975 ).

Opinions of Attorney General.

A city of the third class may enact an ordinance requiring a flagman or other reasonable precautions at certain designated railroad crossings provided it is not arbitrary, in view of the dangerous nature of the crossing and the flow of traffic involved, and, in addition, under its police power, it may require certain precautions at railroad crossings. OAG 75-178 .

Research References and Practice Aids

Cross-References.

Buses, duty when approaching railroad crossing, KRS 281.745 .

Motor vehicles, duty when approaching railroad crossing, KRS 189.560 .

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

1.Duties While Train Stopped.

When engine is stopped close to crossing, trainmen must exercise reasonable care, consistent with safety of persons and property on train, to prevent unusual or unnecessary noises to be made by the engine. Cox v. Illinois C. R. Co., 142 Ky. 478 , 134 S.W. 911, 1911 Ky. LEXIS 241 ( Ky. 1911 ).

2.Clearing Crossing.

Engine need not be moved further from crossing than is required to permit travel, unless trainmen are notified further removal is necessary to permit use of crossing, in which event train should be removed as far as possible with regard to safety of train and persons connected with it. Cox v. Illinois C. R. Co., 142 Ky. 478 , 134 S.W. 911, 1911 Ky. LEXIS 241 ( Ky. 1911 ).

When train is under duty to clear a road crossing, it must cut its cars in such manner that the entire width of the right-of-way of the road will be unobstructed. Harvey v. Illinois C. R. Co., 159 Ky. 492 , 167 S.W. 875, 1914 Ky. LEXIS 838 ( Ky. 1914 ).

3.— Notice of Intent to Move.

A railroad company having blocked a highway in excess of five (5) minutes is under the duty, at least as to infants, of giving reasonable signal or notice of intention to start its cars. Illinois C. R. Co. v. Thomason, 288 Ky. 386 , 156 S.W.2d 192, 1941 Ky. LEXIS 115 ( Ky. 1941 ).

4.Liability of Railroad.

Where railroad obstructed access to its depot by permitting its trains to stand across highway for an unreasonable time, causing passenger to stand outside exposed to cold, it was liable for resulting injury to her health. Louisville & N. R. Co. v. Daugherty, 108 S.W. 336, 32 Ky. L. Rptr. 1392 (1908).

Where railroad unlawfully obstructs highway with standing cars, it is liable to highway traveler exercising care if the horse he is driving becomes frightened at the cars, thereby causing him injuries. Harvey v. Illinois C. R. Co., 159 Ky. 492 , 167 S.W. 875, 1914 Ky. LEXIS 838 ( Ky. 1914 ).

5.— Proximate Cause.

Railroad which obstructed crossing for 30 minutes was not liable for injuries suffered by woman as a result of her standing in cold while waiting for train to move, where she could have avoided injury by going in nearby warm building. Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ).

Blocking of crossing in violation of this section was not, under circumstances, proximate cause of team running away and injuring plaintiff. Griffin v. Chesapeake & O. R. Co., 169 Ky. 522 , 184 S.W. 888, 1916 Ky. LEXIS 733 ( Ky. 1916 ).

Mere presence of standing box car on one of several tracks at street crossing was not proximate cause of injury to pedestrian who was struck by passenger train traveling on another track. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

6.Ordinance.

City ordinance imposing fine for train remaining across street for more than ten (10) minutes is void insofar as it conflicts with this section. Louisville & N. R. Co. v. Commonwealth, 117 Ky. 350 , 78 S.W. 124, 25 Ky. L. Rptr. 1452 , 1904 Ky. LEXIS 186 ( Ky. 1904 ).

This section did not preempt the field of regulation of obstruction of public streets by municipalities as evidenced by the last proviso, and municipal ordinance prohibiting obstruction of a public street by a train for more than five minutes was not arbitrary or unreasonable. Louisville & N. R. Co. v. Commonwealth, 488 S.W.2d 329, 1972 Ky. LEXIS 35 ( Ky. 1972 ).

7.Prosecution for Violation.

This section was not intended to define a violation of its prohibition as a public nuisance. There being no penalty for its violation, no criminal prosecutions can be maintained under it. Illinois C. R. Co. v. Commonwealth, 45 S.W. 367, 20 Ky. L. Rptr. 115 , 1898 Ky. LEXIS 309 (Ky. Ct. App. 1898) (decision prior to 1970 amendment of this section and KRS 277.990 ).

As no penalty is provided for the violation of this section, the only question in a prosecution for violation is, did the railroad obstruct the highway for an unreasonable time. It is a common-law proceeding, to be tried on common-law principles, without regard to this section, except that no obstruction for less than five minutes is unlawful. Louisville & N. R. Co. v. Commonwealth, 117 Ky. 350 , 78 S.W. 124, 25 Ky. L. Rptr. 1452 , 1904 Ky. LEXIS 186 ( Ky. 1904 ) (decision prior to 1970 amendment of this section and KRS 277.990 ).

Opinions of Attorney General.

A city had the statutory authority to enact an ordinance prohibiting the blocking of railroad crossings by moving or standing trains for a period in excess of five minutes. OAG 70-697 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Section Hand Injured in Collision of Hand Car with Train, Form 282.16.

1.Liability of Railroad.

In order for an injured passenger to recover because air brakes were defective, the condition of the brakes must have been the proximate cause of his injury. Louisville, H. & S. L. R. Co. v. Gregory's Adm'r, 141 Ky. 747 , 133 S.W. 805, 1911 Ky. LEXIS 100 ( Ky. 1911 ).

1.Purpose.

This section is for the protection of employes and does not affect the liability of railroad for unsafe condition of street in which tracks are laid. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

2.Failure to Block.

This section is violated when the railroad fails to block any one of its frogs and each such failure is a separate offense. Louisville & N. R. Co. v. Commonwealth, 154 Ky. 293 , 157 S.W. 369, 1913 Ky. LEXIS 61 ( Ky. 1913 ).

3.— Guard.

Failure to block a guard rail at a frog is not a violation of this section even though the guard rail is curved out at the ends leaving a space where a block might be placed. Commonwealth v. Louisville & N. R. Co., 143 Ky. 501 , 136 S.W. 869, 1911 Ky. LEXIS 419 ( Ky. 1911 ).

4.Trespasser.

Trespasser, voluntarily swinging off a moving train in violation of statute, who caught his foot in an unblocked frog could not recover since this section was intended only for protection of employes. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

5.Liability of Employees.

This section and subsection (2) of KRS 277.990 create no liability, civil or criminal, against railroad employees. Prince v. Illinois C. R. Co., 98 F. 1, 1899 U.S. App. LEXIS 3362 (C.C.D. Ky. 1899 ).

6.Recovery Under Federal Employers’ Liability Act.

In an action brought under the federal employers’ liability act, the railroad company may be shown to be guilty of negligence by violating this section. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where brakeman caught his foot in unblocked frog, his right to recover under federal employers’ liability act would be a question of contributory negligence, not assumption of risk. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

7.Indictment.

An indictment is insufficient if it fails to state that defendant was operating a railroad at the time or place mentioned in the indictment. Commonwealth v. Illinois C. R. Co., 55 S.W. 10, 21 Ky. L. Rptr. 1342 , 1900 Ky. LEXIS 337 ( Ky. 1900 ).

1.Injury to Employee.

It was negligence on part of railroad company to have in its trains a car over which its brakemen might be required to pass, so high that they could not safely stand upon it while passing under a bridge which spanned the road. Southern R. Co. v. Duvall, 54 S.W. 741, 21 Ky. L. Rptr. 1153 , 1899 Ky. LEXIS 529 (Ky. Ct. App. 1899).

Though brakeman on freight train, at time when he was not required to do so, went on the one car in his train which it was unsafe for him to be upon, when it was about to pass under a bridge, of which he knew about, he was not guilty of contributory negligence. Southern R. Co. v. Duvall, 54 S.W. 741, 21 Ky. L. Rptr. 1153 , 1899 Ky. LEXIS 529 (Ky. Ct. App. 1899).

1.Duty of Railroad.

Railroad owes no duty to trespasser boarding train in violation of this section until trainmen discover his peril; but where trespasser had returned to pathway habitually traveled by public within town, railroad owed him duty owed general public. Thomas' Adm'r v. Chesapeake & O. R. Co., 245 Ky. 352 , 53 S.W.2d 546, 1932 Ky. LEXIS 583 ( Ky. 1932 ).

A railroad company is not required to police its trains to protect passengers from injury. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

The duty of a railroad company toward a trespasser, either an immature or mature person, infant or adult, arises only where and when its trainmen actually discover the trespasser exposed to danger or peril and not before. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

2.Liability to Violators.

Trespasser, voluntarily swinging off a moving train in violation of this section, who caught his foot in an unblocked frog could not recover damages from railroad; but if he was forced from moving train by railroad officials he could have recovered because statute only applies to acts done voluntarily. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

This section will not bar recovery for injuries received by a child swinging on and off train, where railroad was negligent. Louisville & N. R. Co. v. Steele, 179 Ky. 605 , 201 S.W. 43, 1918 Ky. LEXIS 278 ( Ky. 1918 ), limited, Louisville & N. R. Co. v. Reynolds' Adm'r, 240 Ky. 662 , 42 S.W.2d 911, 1931 Ky. LEXIS 467 ( Ky. 1931 ) ( Ky. 1918 ).

3.Trespass.

A person violating this section is a trespasser as a matter of law although he is known to be on the train. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

4.Attractive Nuisance Doctrine.

There should be applied to railroad companies the same degree of care in respect to looking out for children who habitually go about and upon their trains in the presence of and with the consent of the servants in charge, or at least without objection on their part, that is required to be exercised by other persons in charge of dangerous places, machinery, or appliances that are attractive to children. Louisville & N. R. Co. v. Steele, 179 Ky. 605 , 201 S.W. 43, 1918 Ky. LEXIS 278 ( Ky. 1918 ), limited, Louisville & N. R. Co. v. Reynolds' Adm'r, 240 Ky. 662 , 42 S.W.2d 911, 1931 Ky. LEXIS 467 ( Ky. 1931 ) ( Ky. 1918 ).

Ordinarily trespassing children occupy the same position as trespassing adults except for special responsibility in case of attractive nuisance but this doctrine is not applicable to a moving car or train. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

Research References and Practice Aids

ALR

Contributory negligence of railroad employe in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

1.Constitutionality.

This section does not violate Const., §§ 93 and 107 in failing to limit the terms of office of railroad policemen to four (4) years, but the term of office is limited to four (4) years by the constitution. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

2.Qualification Within Prescribed Period.

If one appointed under this section fails to qualify by taking oath and executing bond within 30 days after receiving notice of his appointment, he vacates his office under Const., § 236 and KRS 62.010 , 62.050 . Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Railroad must see or know that officer appointed at its instance under this section qualified within the statutory period before it permits him to act as policeman. Where policeman did not qualify within time prescribed by statute, or where his term has expired, both railroad and policeman are liable for wrongful arrest made by him. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Validity of appointment and qualification of railroad policeman would be assumed by court in absence of any question being raised on the matter. Congleton v. Commonwealth, 273 Ky. 282 , 116 S.W.2d 300, 1938 Ky. LEXIS 611 ( Ky. 1938 ).

3.Office Ceases with Officer.

When the term of a railroad policeman expires, either by operation of law or at the will of the railroad, the office he held ceases with the officer. When another officer is appointed he does not take it as successor to anyone. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

4.Liability for Unlawful Arrest.

Railroads are liable for unlawful arrest and imprisonment by policeman appointed under this section. Louisville & N. R. Co. v. Offutt, 204 Ky. 51 , 263 S.W. 665, 1924 Ky. LEXIS 390 ( Ky. 1924 ).

Cited:

Chesapeake & O. R. Co. v. Welch, 268 Ky. 93 , 103 S.W.2d 698, 1937 Ky. LEXIS 416 ( Ky. 1937 ).

Opinions of Attorney General.

It is not necessary to renew the appointment of road policemen every four (4) years. OAG 63-284 .

Although there is no statutory or constitutional incompatibility between serving as police court judge and in the appointed position of railroad policeman, a common-law incompatibility may exist. OAG 71-427 .

A county ordinance, enacted pursuant to KRS 67.083 , which purports to comprehensively regulate armed security officers for nongovernmental entities of private enterprise is invalid as applied to railroad policemen, under subsection (3) of KRS 67.083 , in view of the direct and specific conflict between the ordinance and KRS 277.270 et seq., and because KRS 277.270 et seq. preempt the field of railroad policemen. OAG 80-157 .

1.Policeman as Employee.

Although railroad policeman is an officer, he is also a servant and employee of the railroad. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

2.Powers.

An arrest of two (2) men by railroad police patrolling employer’s railroad tracks was not illegal where the two (2) men were standing near a three-foot stack of high explosives just above the center support of railroad bridge since the railroad police had the common-law power reinforced by KRS 431.005 to make a citizen’s arrest in the instance of a felony being committed in their presence where there was probable cause to believe the person arrested was participating in committing it. United States v. Hensley, 374 F.2d 341, 1967 U.S. App. LEXIS 7323 (6th Cir. Ky.), cert. denied, 388 U.S. 923, 87 S. Ct. 2139, 18 L. Ed. 2d 1373, 1967 U.S. LEXIS 1245 (U.S. 1967).

In action against railroad for wrongful death resulting from shooting by railroad policeman in attempt to make an arrest, it was not error to instruct jury that policeman had right to make an arrest anywhere in the county for an offense committed on or about railroad property. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Railroad policeman has power to determine when an arrest should be made, and if he acts illegally in attempting to make an arrest he is nevertheless acting within the scope of his employment, and the railroad is liable. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Where railroad policeman believed that persons whom he attempted to arrest had broken into freight car on railroad property, he was acting as agent for railroad company in making the arrest, and the fact that he had no legal right to make the arrest under the circumstances did not make his action beyond the scope of his authority. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Where railroad policeman had abandoned attempt to make arrest at time of assault resulting in death of one of the persons whom policeman had attempted to arrest, there was no occasion for an instruction, in trial of policeman for murder, as to what force he might lawfully use in making an arrest, or as to what was his power of arrest. Raney v. Commonwealth, 292 Ky. 381 , 166 S.W.2d 844, 1942 Ky. LEXIS 95 ( Ky. 1942 ).

3.Responsibility of Railroad.

Where railroad policeman arrested several persons in belief that they had broken into freight car, and after conversation with them told one of them that they might go on home, but such apparent release from arrest was not made known to others, subsequent altercation in which policeman killed one of persons was sufficiently connected with arrest to impose responsibility on railroad for policeman’s actions. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Railroad policeman’s power was limited by his special appointment to making arrests for public offenses having some relation to railroad property and although there was sufficient evidence of unlawful arrest or “false imprisonment” where railroad policeman without company’s knowledge went to golf course on ground leased by railroad to a corporate entity separate from the railroad and ordered plaintiff to get into a car and go with him since plaintiff could reasonably have believed that he was under arrest, railroad was not liable as the policeman’s actions were not within the scope of his employment. Louisville & N. R. Co. v. Vinson, 310 Ky. 854 , 223 S.W.2d 89, 1949 Ky. LEXIS 1034 ( Ky. 1949 ).

Opinions of Attorney General.

A railroad could stand as surety on the bonds required of its railroad policemen if approved by the county judge. OAG 71-11 .

Subject to approval by the county judge, the Clinchfield Railroad may become surety on a railroad policeman’s bond. OAG 71-11 .

The bond executed by a railroad policeman with the railroad company as surety would have to follow the requirements of KRS 62.060 . OAG 71-11 .

Railroad policemen may make arrests throughout a county through which the railroad employing them operates and may make such arrests within this limitation either on or off railroad property, but any such arrests may only be made legally for public offenses committed on or about railroad property and in some way connected with railroad property. OAG 73-536 .

In view of the language “so long as I continue a citizen hereof” contained in the oath in Const., § 228, it seems that a railroad policeman who is required by this section to take such oath must be a citizen of Kentucky. OAG 75-166 .

A railroad policeman may serve, off railroad property, an arrest warrant, as a process in a criminal prosecution, for an offense committed on railroad property, if such process is served within a county through which the railroad operates, since the jurisdiction of a railroad policeman, pursuant to subsection (1) of this section, is limited, in part, to “throughout the counties through which the railroad operates, . . . . . for public offenses committed upon or about railroad property.” OAG 93-29 .

A railroad policeman may make an arrest off railroad property, but within a county through which the railroad operates, for a felony, without an arrest warrant, if (1) the offense is a felony, and (2) the arrest is for an offense “committed upon or about railroad property,” and (3) the circumstances specified in KRS 431.005(1)(b) or (c) are present. OAG 93-29 .

Railroad policemen do not have jurisdiction to serve a criminal process and make arrests in counties through which the railroad does not operate. OAG 93-29 .

Research References and Practice Aids

Cross-References.

Private employment and compensation of peace officers and deputies limited, KRS 61.310 .

Sheriffs and constables, powers and liabilities of, KRS Ch. 70.

1.Construction.

This section does not increase the legal liability of a railroad company to its employees, or deprive it of any of its common-law defenses, unless its negligence contributes to the employee’s accident. If, however, such negligence on its part contributes to the accident, then it becomes liable even though its negligence may not be the sole proximate cause of the accident — the extent or degree of such liability being fixed by the last sentence of KRS 277.320 . The company is liable, proportionately, if its negligence merely contributes to the accident. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

2.Application.

This section and KRS 277.320 are valid as to carriers engaged in interstate commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

This section and KRS 277.320 apply only when carrier and person injured are engaged in commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

Where evidence showed that deceased was not employee of railroad, but was merely a licensee at time of death caused by wreck of logging train on which he was riding, this section did not apply and railroad was not liable for mere negligence, in absence of wilful or wanton injury. Selson's Adm'x v. Kitchen Lumber Co., 276 Ky. 3 , 122 S.W.2d 1037, 1938 Ky. LEXIS 536 ( Ky. 1938 ).

This section and KRS 277.230 did not apply to employee of supply company where such company had a licensing agreement for special use of railroad’s siding for unloading operations and supply company did not undertake to perform any service for the railroad and the railroad did not participate in the unloading operation in which the supply company employee was injured. Johnson v. Louisville & N. R. Co., 394 S.W.2d 110, 1965 Ky. LEXIS 173 ( Ky. 1965 ), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 441, 1966 U.S. LEXIS 1796 (U.S. 1966).

3.Engaged in Commerce.

Machinist setting valves on engine in roundhouse was not engaged in commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

Car repairers carrying a trestle to be placed under a loaded car were engaged in commerce. Louisville & N. R. Co. v. Clark, 211 Ky. 315 , 277 S.W. 272, 1925 Ky. LEXIS 872 ( Ky. 1925 ).

Construction crew engaged exclusively in blasting operations in constructing a new track were not engaged in commerce. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ).

Supply man checking engine tools was engaged in commerce. Chesapeake & O. R. Co. v. McCracken, 249 Ky. 767 , 61 S.W.2d 618, 1933 Ky. LEXIS 595 ( Ky. 1933 ).

4.Interstate Commerce.

Engineer called to make run from Corbin, Ky. to Norton, Va. who appeared at the railroad yards and began making preparations for his trip was engaged in interstate commerce and action for injuries had to be brought under the federal employers’ liability act and where action was brought under state act defendant’s motion for judgment notwithstanding verdict and peremptory instruction were sufficient to raise the interstate question involved. Hines v. Burns' Adm'x, 189 Ky. 761 , 226 S.W. 109, 1920 Ky. LEXIS 511 ( Ky. 1920 ).

5.Negligence of Employer.

In accepting employment, thereby assuming risk of injury ordinarily incident to work, employee does not contract against negligence of the employer as this is prohibited by the Constitution. McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

Railroad company cannot delegate to another by contract its obligation to furnish its employees a reasonably safe place to work. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Employee was not injured because of negligence of company in permitting coal car to remain in unsafe condition, where in performing customary duty of letting down doors by use of lever attached to chain, he found door would not open, put weight on lever, which struck him in groin upon sudden straightening of kink in chain. Louisville & N. R. Co. v. Smith, 287 Ky. 671 , 155 S.W.2d 28, 1941 Ky. LEXIS 625 ( Ky. 1941 ).

Where hand-operated switch, at point where spur track connected with main line, was replaced by an automatic spring switch, which permitted north-bound trains on main line to continue on the line, and which automatically shunted south-bound trains onto the spur, railroad company had no duty to change the tracks because of the change in the switch, and failure to change tracks was not violation of safety statute and did not constitute negligence contributing to death of operator who had worked at the point prior to change of switch, and on day of accident was working there for first time since change of switch, and who stepped onto spur track directly in front of south-bound train. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

6.Evidence.

In action for death of brakeman who fell from car he was riding and was run over by second car during coupling, evidence was insufficient to make issue for jury as to whether railroad used excessive or unnecessary force in the coupling and verdict should have been directed for the railroad. Chesapeake & O. R. Co. v. Thomason, 70 F.2d 860, 1934 U.S. App. LEXIS 4339 (6th Cir. Ky. 1934 ).

7.Jurisdiction.

A cause of action under the Kentucky employers’ liability act is not to be regarded as one arising under the laws of the United States although based on a duty imposed by the federal safety appliance acts and is properly brought in the district in which the plaintiff resides and in which the defendant does business where there is a diversity of citizenship. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

Where complaint stated two causes against railroad, one under federal employers’ liability act and the other under common law or state statute but both sought recovery for alleged wrongful death of plaintiff’s decedent, because of alleged failure to furnish reasonably safe place to work and to furnish safe tools and appliances, though measure of recovery was different, case was not removable. Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ).

8.— Concurrent Actions.

The fact that an action against railroad, to recover damages for death of employee, brought under this section and KRS 277.320 , was pending in state court, did not require dismissal of action for same purpose brought in federal court under federal employers’ liability act since where no conflict arises over the custody or dominion of specific property, the pendency of a prior action for only a personal judgment in a state court is neither a valid defense to nor ground for abatement of a subsequent suit in a federal court of concurrent jurisdiction although both suits are between the same parties and for the same cause and each court is free to proceed without reference to proceedings in other and whenever a judgment is rendered in one of the courts it may be pleaded in the other and its effect determined under the principles of res adjudicata. Chapman v. Louisville & N. R. Co., 66 F. Supp. 694, 1946 U.S. Dist. LEXIS 2395 (D. Ky. 1946 ).

Research References and Practice Aids

Cross-References.

Actions for wrongful death, Const., § 241; KRS 411.130 .

ALR

Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof. 30 A.L.R.2d 1192.

Assumption of risk as affecting railroad employer’s liability for injury or death of employee, based on failure to furnish assistance to employee. 36 A.L.R.2d 8, 130.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment. 50 A.L.R.2d 363.

Duty of railroad company toward employees with respect to close clearance of objects alongside track. 50 A.L.R.2d 674.

Surface of yard, duty of railroad company to prevent injury of employee due to. 57 A.L.R.2d 493.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

Application of doctrine of res ipsa loquitur in action under Federal Employers’ Liability Act for injury to or death of employee riding train resulting from sudden stop, start, or jerk of train. 60 A.L.R.2d 642.

1.Use of Defenses.

Defense of contributory negligence or assumption of risk is not withheld unless both carrier and employee are engaged in commerce. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ).

Unless action is brought under federal or state employers’ liability acts pleas of contributory negligence, negligence of fellow servant and assumption of risk are permissible. McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

Under federal employers’ liability act defenses of contributory negligence and assumption of risk are available unless railroad violates a federal safety statute, but violation of a state statute is negligence to be compared with negligence of employee under federal doctrine of comparative negligence. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ). But see McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

If there is no violation of a safety statute, the company may invoke either or both of the defenses of assumption of risk and contributory negligence. And if employee’s negligence was the sole cause of the accident, and not merely a contributing one, there can be no recovery. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

2.Federal Safety Appliance Acts.

The federal safety appliance act was intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce and the duty to protect employees by prescribed safety appliances exists even though the vehicles and the employee injured through the failure to provide such protection are at the time engaged in intrastate commerce. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

The provisions of the federal safety appliance acts for the safety of employees are in effect read into this section. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

The federal safety appliance act imposes an absolute duty on employer superseding his common-law duty which cannot be abrogated by state act but the federal safety appliance act leaves the nature and the incidents of the remedy to the laws of the states and the federal courts are bound as those of the state to conform to the remedial procedure adopted by the state. Tipton v. Atchison, T. & S. F. R. Co., 298 U.S. 141, 56 S. Ct. 715, 80 L. Ed. 1091, 1936 U.S. LEXIS 984 (U.S. 1936).

Federal safety appliance acts do not give a right of action for their breach in intrastate commerce but leave the regulation of such action to the law of the states. Tipton v. Atchison, T. & S. F. R. Co., 298 U.S. 141, 56 S. Ct. 715, 80 L. Ed. 1091, 1936 U.S. LEXIS 984 (U.S. 1936). See Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

Violation of federal safety appliance acts is negligence for which recovery may be had under federal employers’ liability act if breach occurs in interstate commerce or under state employers’ liability act if the breach occurs in intrastate commerce. Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

Where mining company had contracted to indemnify railroad company against all claims arising from operation of spur track, but denied liability under contract when railroad employee was injured, railroad company was liable under federal employers’ liability act if there was negligence and it could exercise reasonable judgment in settling claim and mining company was obligated to indemnify it. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

3.Assumption of Risk.

Defense of assumption of risk is withheld only where negligence consists in failing to observe statutory requirements for safety of employees. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ). See Chesapeake & O. R. Co. v. Music, 243 Ky. 491 , 49 S.W.2d 311, 1932 Ky. LEXIS 139 ( Ky. 1932 ).

Where servant who was holding a chisel, was struck on the hand by hammer being used by another employee, he assumed risk of injury, and railroad was not liable though work could have been done by air hammer. Cincinnati, N. O. & T. P. R. Co. v. Gossett, 230 Ky. 240 , 18 S.W.2d 986, 1929 Ky. LEXIS 52 ( Ky. 1929 ).

Doctrine of assumed risk is abrogated only where the injury grows out of violation of a federal or state statute enacted for safety of employees in commerce. Cincinnati, N. O. & T. P. R. Co. v. Gossett, 230 Ky. 240 , 18 S.W.2d 986, 1929 Ky. LEXIS 52 ( Ky. 1929 ).

Section hand who was ruptured while unloading crossties from car when notch in one of the ties caught on side of car, and suddenly stopped its movement held to have assumed risk. Chesapeake & O. R. Co. v. Music, 243 Ky. 491 , 49 S.W.2d 311, 1932 Ky. LEXIS 139 ( Ky. 1932 ).

When master has failed to provide a safe place to work, assumption of risk applies only when servant knows of the negligence and the danger therefrom is appreciated by him. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where railroad section hand undertook to handle a heavy switch tie without asking for help, and was ruptured in so doing, he assumed the risk of that injury, there being no safety statute involved, since a man is the best judge of his own strength, and assumes the risk incident to lifting a load heavier than he is able to bear. Louisville & N. R. Co. v. Alexander, 277 Ky. 719 , 127 S.W.2d 395, 1938 Ky. LEXIS 573 ( Ky. 1938 ).

Carpenter working in coach on hot day assumed risk of injury by overheat caused by steam being turned on in coach, where he knew his protests were being ignored and was privileged to leave coach if he found it too hot. Tucker's Adm'r v. Louisville & N. R. Co., 277 Ky. 774 , 127 S.W.2d 842, 1939 Ky. LEXIS 733 ( Ky. 1939 ).

Where employee is directed by his superior to do a certain act immediately, the employee does not assume the risk, although he is aware of the danger, unless the danger is so obvious and imminent that an ordinarily prudent person would have refused to proceed. Wallis v. Illinois C. R. Co., 276 Ky. 436 , 124 S.W.2d 481, 1939 Ky. LEXIS 531 ( Ky. 1939 ).

Failure to give instruction offered by defendant railroad to effect that employee assumed ordinary risks of employment including risk of being burned by sparks from ordinary use of acetylene torch was reversible error, where former opinion was that employee assumed ordinary risks, but did not assume certain other risks, and instructions on retrial did not take into account distinction made in former opinion between risks assumed. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

4.— Removal.

Action arising under federal employers’ liability act rather than federal safety appliance act is not removable from state to federal court. Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

A complaint based on two causes of action (1) to recover under the state law, and (2) to recover under the federal employers’ liability act for the alleged wrongful death because of failure to furnish reasonably safe place to work and safe tools and appliances with which to work could not be removed to the federal court on diversity of citizenship since the federal employer’s liability act prohibits removal. Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ).

5.Instructions.

Instruction respecting duty of employee using acetylene torch to wear goggles supplied by railroad and to keep them adjusted was properly refused where only evidence was that he was wearing them. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

On trial of action by employee for personal injuries instructions should be given that employee assumed all ordinary risks of employment, including risk of being burned by sparks caused by ordinary use of acetylene torch, and that if so injured jury should find for defendant railroad. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

Where railroad employee knew the nature of the work which he was performing and inherent dangers connected therewith he assumed the risk of injury and where there was no showing of negligence on the part of the employer and no allegation which would make applicable the provisions of the federal employers’ liability act or the Kentucky employers’ liability act (KRS 277.310 and 277.320 ) common law principles governed and he could not recover for injury sustained. Chesapeake & O. R. Co. v. Lilly, 300 Ky. 100 , 188 S.W.2d 105, 1945 Ky. LEXIS 511 ( Ky. 1945 ).

In action under state employer’s liability act, where railroad signal man, stationed at point where spur connected with main line, was required on certain occasions, after receiving whistle signal from approaching trains on main line, to throw a yellow signal on block, walk to side of track, and hand engineer a message on a hoop, and there was a spring switch at intersection which automatically shunted south-bound trains onto spur track, railroad company was entitled to peremptory instruction in action for death of signal man who, in attempting to deliver message to engineer of south-bound train, walked onto spur track directly in front of train. The evidence being that the train was already several feet onto the spur when the deceased stepped in front of it, there was no basis for claim of any negligence on part of train employees in failing to keep proper lookout or to give a signal or warning before entering upon the spur and employee’s negligence was sole cause of accident and not merely contributing factor. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

Cited:

Hilen v. Hays, 673 S.W.2d 713, 1984 Ky. LEXIS 261 ( Ky. 1984 ).

Research References and Practice Aids

Cross References

Cross-References.

See note to KRS 277.310 under heading “Jurisdiction — Concurrent Actions.” Chapman v. Louisville & N.R.R., 66 F. Supp. 694, 1946 U.S. Dist. LEXIS 2395 (E.D. Ky. 1946 ).

Kentucky Bench & Bar.

Turley, The “New” Doctrine of Comparative Negligence in Kentucky, Volume 49, No. 1, January, 1985 Ky. Bench & B. 8.

Kentucky Law Journal.

Harville, The Burden of Pleading Contributory Negligence, The Burden and Proving Contributory Negligence, 39 Ky. L.J. 186 (1951).

Comments, Negligence — Violation of Safety Regulation as Negligence per se: The Perishable Sanction, 62 Ky. L.J. 254 (1973-1974).

Kentucky Law Survey, Adams, Torts, 73 Ky. L.J. 481 (1984-85).

Collateral References.

ALR

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

1.Constitutionality.

Provision which imposed a duty upon a railroad company of proving that it was free from negligence in the killing or injury of cattle by its engine or cars is invalid and unconstitutional. Louisville & N. R. Co. v. Faulkner, 307 S.W.2d 196, 1957 Ky. LEXIS 83 ( Ky. 1957 ) (decision prior to 1966 amendment).

2.Application.

Where owner has not been compensated for fencing and if railroad has not constructed a right-of-way fence, its liability for one-half (1/2) the value of stock killed is determined by this section; but if railroad constructs or attempts to construct a right-of-way fence, this section has no application and railroad’s duty and liability are determined by KRS 256.100 to 256.170 . Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ).

3.Duties of Railroad Company and Employees.

Crossing signals required by KRS 277.190 and 278.580 (repealed) are for protection of cattle as well as persons on or near the crossing. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ). See Chesapeake & O. R. Co. v. Burton, 156 Ky. 736 , 161 S.W. 1116, 1914 Ky. LEXIS 181 ( Ky. 1914 ); Campbell v. Mobile & O. R. Co., 162 Ky. 58 , 171 S.W. 1002, 1915 Ky. LEXIS 8 ( Ky. 1915 ); Chesapeake & O. R. Co. v. Turley, 192 Ky. 568 , 234 S.W. 188, 1921 Ky. LEXIS 113 ( Ky. 1921 ).

Where horses are killed by train at public crossing, fact that trainmen could not have saved the horses after they were discovered on track does not relieve railroad of liability if crossing signals were not given. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ).

Railroads must use ordinary care to discover cattle straying on track. Louisville & N. R. Co. v. Logsdon's Adm'r, 118 Ky. 600 , 81 S.W. 657, 26 Ky. L. Rptr. 457 , 1904 Ky. LEXIS 66 ( Ky. 1904 ). See Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

If horses were on the track and seen by the engineer a quarter of a mile before the train struck them, it was negligence not to have stopped, or attempted to have stopped, the train to avoid the accident. Mobile & O. R. Co. v. Morrow, 97 S.W. 389, 30 Ky. L. Rptr. 83 (1906).

Engineer is not required to know location of fences along right-of-way. Pickett v. Lexington & E. R. Co., 153 Ky. 460 , 155 S.W. 1139, 1913 Ky. LEXIS 859 ( Ky. 1913 ).

Railroad must keep a lookout for stock and sound the alarm or stock whistle when stock are discovered on the track. Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

After the peril of stock is discovered, or could have been discovered in the exercise of ordinary care, trainmen are only required to use ordinary care, with the means at their command, consistent with the safety of the train and persons thereon to avoid injuring the stock. Kentucky Traction & Terminal Co. v. Wright, 168 Ky. 493 , 182 S.W. 604, 1916 Ky. LEXIS 575 ( Ky. 1916 ). See Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

Railroad must keep a lookout for stock upon its right-of-way, whether same be inclosed or uninclosed, or whether the adjoining landowner has been compensated for fencing. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ).

4.Amount of Liability.

Where owner has not been compensated for fencing and railroad attempts to construct a right-of-way fence and fails to construct a lawful fence or to properly maintain it and by reason of such failure stock are injured by its train, it will be liable to the owner for the full amount of the loss, unless the owner by ordinary care could have prevented the stock from straying through the fence, or prevented injury after stock got on right-of-way or he consents to the defective places in the fence, or agrees to the character of fence to be constructed. Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ). See Louisville & N. R. Co. v. Simmons, 85 Ky. 151 , 3 S.W. 10, 8 Ky. L. Rptr. 896 , 1887 Ky. LEXIS 30 ( Ky. 1887 ); Hiens v. Kough, 189 Ky. 806 , 225 S.W. 1082, 1920 Ky. LEXIS 516 ( Ky. 1920 ); Louisville & N. R. Co. v. Calloway, 213 Ky. 235 , 280 S.W. 966, 1926 Ky. LEXIS 487 ( Ky. 1926 ).

Where railroads negligently kill stock with their trains, they are liable for the full value of such stock, whether the right-of-way is inclosed or uninclosed or whether the landowner has been compensated for fencing. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ).

5.Pleadings.

Under this section petition may seek full damages for value of horse alleged to have been negligently killed, and also allege that plaintiff has not received compensation for fencing and ask for one-half damages if plaintiff cannot recover full damages. Louisville & N. R. Co. v. Kice, 109 Ky. 786 , 60 S.W. 705, 22 Ky. L. Rptr. 1462 , 1901 Ky. LEXIS 37 ( Ky. 1901 ).

6.Defenses.

Where railroad’s charter provided that actions against it for stock killed by its negligence be brought within six (6) months and action was not brought within six (6) months, such statute of limitation was a defense. Louisville & N. R. Co. v. Williams, 103 Ky. 375 , 45 S.W. 229, 20 Ky. L. Rptr. 77 , 1898 Ky. LEXIS 75 ( Ky. 1898 )See further, Acts 1855-56, p. 314, §§ 6, 7; 1 Acts 1857-8, p. 293, § 6Mortimer v. Louisville & N. R. Co., 73 Ky. 485 , 1874 Ky. LEXIS 76 ( Ky. 1874 ).

7.Evidence.

8.— Burden of Proof.

Where testimony of train crew that killing of stock could not be avoided in exercise of ordinary care is unimpeached and uncontradicted, jury must find for railroad on question of negligence. McGhee v. Guyn, 98 Ky. 209 , 32 S.W. 615, 17 Ky. L. Rptr. 794 , 1895 Ky. LEXIS 39 ( Ky. 1895 ). See Felton v. Anderson, 66 S.W. 182, 23 Ky. L. Rptr. 1809 (1902); Mobile & O. R. Co. v. Morrow, 97 S.W. 389, 30 Ky. L. Rptr. 83 (1906); Crawford v. Southern Ry in Kentucky, 150 Ky. 741 , 150 S.W. 990, 1912 Ky. LEXIS 980 ( Ky. 1912 ), rev'd, Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ); Remley v. Illinois C. R. Co., 151 Ky. 796 , 152 S.W. 973, 1913 Ky. LEXIS 584 ( Ky. 1913 ); Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

Burden of proof is on the owner to show that killing of stock was by a train. Southern R. Co. v. Forsythe, 64 S.W. 506, 23 Ky. L. Rptr. 942 , 1901 Ky. LEXIS 472 (Ky. Ct. App. 1901).

Where killing of stock is denied by railroad, the burden of proof is upon plaintiff to prove negligence. Hiens v. Kough, 189 Ky. 806 , 225 S.W. 1082, 1920 Ky. LEXIS 516 ( Ky. 1920 ).

9.— Circumstantial.

Where colt was found crippled near the bottom of a 14-foot rocky railroad fill, and tracks on top of the fill indicated the colt had been there, the evidence was not sufficient to show that colt had been struck by train since colt may have been crippled by falling down embankment. Southern R. Co. v. Forsythe, 64 S.W. 506, 23 Ky. L. Rptr. 942 , 1901 Ky. LEXIS 472 (Ky. Ct. App. 1901).

Where physical facts tend to show negligence of railroad, jury is not bound to accept testimony of railroad employees as to absence of negligence, although no other witnesses saw the accident. Illinois C. R. Co. v. Stanley, 96 S.W. 846, 29 Ky. L. Rptr. 1054 (1906). See Louisville & N. R. Co. v. Jones, 52 S.W. 938, 21 Ky. L. Rptr. 749 , 1899 Ky. LEXIS 348 (Ky. Ct. App. 1899); Chesapeake & O. R. Co. v. Howard, 143 Ky. 218 , 136 S.W. 153, 1911 Ky. LEXIS 356 ( Ky. 1911 ).

Jury has a right to find against the railroad on circumstantial evidence, although it may be in conflict with the direct evidence of railroad employees. Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

Evidence that stock are found killed by railroad track is sufficient to submit question of negligence of railroad to jury. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ). See also Louisville & N. R. Co. v. Montgomery, 32 S.W. 738, 17 Ky. L. Rptr. 807 (1895) (prior to 1966 amendment).

10.Instructions.

Peremptory instruction for defendant was erroneous where petition alleged stock was injured by railroad’s wilful negligence in running train and answer denied that negligence was wilful or wanton. Faulkner v. Kean, 32 S.W. 265, 17 Ky. L. Rptr. 654 (1895).

The jury should be instructed to find for plaintiff the reasonable value of stock killed and an amount sufficient to indemnify him for the injury to others unless they believe from the evidence that railroad’s servants exercised ordinary care and diligence in performing their duty to keep a lookout for stock upon the tracks and after its discovery to have used all reasonable precaution, consistent with the safety of the train and the persons thereon, to have avoided injuring the stock and that notwithstanding this the stock was killed and injured. Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

Railroad is not entitled to a peremptory instruction where other witnesses testify that train employees were negligent although train crew testify that killing of stock could not be avoided in exercise of ordinary care. Chesapeake & O. R. Co. v. Grigsby, 131 Ky. 363 , 115 S.W. 237, 1909 Ky. LEXIS 34 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

“Cattle,” definition of, KRS 446.010 .

Cruelty to animals in the second degree, KRS 525.130 .

Railroad companies required to build fences as other landowners, KRS 256.100 .

1.Constitutionality.

Exemption of water districts from jurisdiction of public service commission is not unconstitutional. Middendorf v. Jameson, 265 Ky. 111 , 95 S.W.2d 1057, 1936 Ky. LEXIS 417 ( Ky. 1936 ) (decision prior to 1964 amendment).

2.Application.

Where three individuals built a private water line from their homes to a water main inside city limits and the city installed meters and charged the individuals the regular city rates and 19 others were allowed to tap into the line each paying the three (3) original builders $100 and signing a contract agreeing not to hold the original builders responsible for loss of service and to share the cost of maintenance the line was not a public utility within the regulation of the public service commission since it was not a distribution of water by the three (3) individuals for compensation. Austin v. Louisa, 264 S.W.2d 662, 1954 Ky. LEXIS 684 ( Ky. 1954 ).

This statute is intended to apply only to persons dealing with water as a commodity. Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ).

Since sanitation districts are excluded from the provisions of this chapter and consequent Public Service Commission regulation, not only by omission, but by precise placement in another chapter of the KRS (KRS Chapter 220) a sanitation district is not a utility within the context of this chapter. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated KRS 278.160 requiring utilities to have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While subsection (3) of this section sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

3.Authority to Regulate.

The authority to regulate rates of public utilities is primarily a legislative function, and the right is essentially a police power. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ). See Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

4.Federal Regulation.

Where gas company disposes of its gas direct to two (2) pipeline systems admittedly engaged in interstate commerce and the gas is mingled with other gas the vast bulk of which is destined for consumption outside the state, the federal power commission and not the Kentucky public service commission has full power to regulate even though some of the gas produced is distributed to purchasers within the state as there is no divided authority in the federal regulatory field. Columbian Fuel Corp. v. Public Service Com., 333 S.W.2d 945, 1959 Ky. LEXIS 29 ( Ky. 1959 ).

5.Right to Public Utility Service.

Right to public utility service is not an inherent or natural right but a common-law right subject to change by legislature. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

6.Exemption from Regulation.

Exemption of subsection (3) of this section that exempts cities from control of public service commission extends to all operations of a municipality whether within or without the territorial boundaries of the city. McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

In the operation of a water plant a municipal corporation is not under the jurisdiction of the public service commission. Mt. Vernon v. Banks, 380 S.W.2d 268, 1964 Ky. LEXIS 309 ( Ky. 1964 ) (decision prior to 1964 amendment).

Where the city proposed to issue revenue bonds to construct a natural gas distribution and transmission system which it proposed to lease to a private party to operate and the private party had the power to adjust the rates under certain conditions, the private party was not an “operating facility” of the city and the facility does not fall under the exception from public service commission supervision or regulation. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

Since a city owned water supply system was not a utility subject to the jurisdiction of the public service commission, the commission was without jurisdiction to resolve a territorial dispute between a city and a private water company where the city undertook to extend its water supply system beyond city limits into a contiguous territory served by the private company. Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

7.Service.

“Service” relates only to quantity and quality, and does not include facilities for transmission except insofar as they relate to quantity and quality. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

Subsection (2) of KRS 278.040 vests exclusive jurisdiction over utility “service,” as defined in subdivision (13) of this section, in the energy regulatory commission; accordingly, regulations adopted by the commission concerning the placement of gas meters preempt the field, and any conflicting city ordinances attempting to restrict the placement of the meters are invalid. Peoples Gas Co. v. Corbin, 625 S.W.2d 848, 1981 Ky. LEXIS 309 ( Ky. 1981 ).

Where the defendant did not generate electricity but rather, received electricity from TVA and distributed that power to its customers, under Kentucky law, the defendant did not manufacture a “product”; it provided a service. G & K Dairy v. Princeton Electric Plant Bd., 781 F. Supp. 485, 1991 U.S. Dist. LEXIS 20439 (W.D. Ky. 1991 ).

8.Rates.

Petition against city electric company for overcharge on ground petitioner was charged commercial rate when it should have been charged the lower residential rate stated no cause of action where it did not plead under what law the city electric company was limited to the rates set out in the petition, that is, whether it was under city ordinance or under this section to KRS 278.450 or how the law limited the city electric company to such rates. Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ).

The power of cities to contract with respect to utility rates does not deprive the state of its police power of regulation; but this power was not exercised before KRS 278.010 to 278.450 were enacted, and therefore contracts made before that date are valid. Union Light, Heat & Power Co. v. Covington, 282 Ky. 558 , 139 S.W.2d 64, 1940 Ky. LEXIS 208 ( Ky. 1940 ).

The Public Service Commission has jurisdiction over the utility companies, and that jurisdiction extends to their poles and the “services” and “rates” generated by pole attachment agreements with cable television companies; such use provides additional revenue to the utilities which must be considered in determining the “rates” it charges its customers for its basic utility services. Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

9.City Franchise.

Failure of legislature to provide in law regarding public service commission for municipality to ask the commission to frame a franchise ordinance containing the terms and conditions upon which a proposed public utility could enter the city and commence operation left the city to pass its own ordinance and to sell a franchise created in the ordinance on the terms specified in the ordinance. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

Where water company had a five-year franchise from a city which contained a schedule of rates for fire hydrant service dated one year prior to enactment of this section and six years later purchased a 20-year franchise from the city subject to regulation by public service commission and then sold its plant to a second water company, the fact the rates in effect after the sale were the same as those provided in the five-year franchise did not have the effect of continuing in force obligations of that franchise. Nerren v. Kentucky Water Service Co., 313 Ky. 151 , 230 S.W.2d 615, 1950 Ky. LEXIS 834 ( Ky. 1950 ).

10.“Electric-Consuming Facilities.”

The definition of “electric-consuming facilities” does not limit a facility to being a building, but is broad enough to mean an entire industrial park which will be served from a central station source, even though the park operator or developer may purchase and consume very little electricity and be only one of several actual consumers within the park. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

11.Designation As Public Utility.

The Circuit Court ruled that amendments to this section, which allowed the Public Service Commission to regulate private sewage treatment plants, made the private sanitation company in this case a public utility, and on that basis the court ruled that the trust indenture between the private sanitation company and bank designed to provide a guaranteed backup for the operation of the sewer system if the private company became insolvent, was terminated by the designation of private company as a public utility. Louisville & Jefferson County Metro. Sewer Dist. v. Tarrytowne Sanitation Co., 818 S.W.2d 267, 1991 Ky. App. LEXIS 51 (Ky. Ct. App. 1991).

Cited:

Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ); Kentucky Utilities Co. v. Paris, 297 Ky. 440 , 179 S.W.2d 676, 1944 Ky. LEXIS 705 ( Ky. 1944 ); Citizens Tel. Co. v. Anderson, 269 S.W.2d 283, 1954 Ky. LEXIS 1001 ( Ky. 1954 ); Covington v. Board of Comm’rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ); Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ); Electric & Water Plant Bd. v. South Cent. Bell Tel. Co., 805 S.W.2d 141, 1990 Ky. App. LEXIS 143 (Ky. Ct. App. 1990); Commonwealth v. PSC of Ky., — S.W.3d —, 2008 Ky. App. LEXIS 29 (Ky. Ct. App. 2008).

Opinions of Attorney General.

The Kentucky public service commission has no jurisdiction over the rates and service of a community antenna television system. OAG 64-44 .

A city which owns and operates its own water plant is not under the jurisdiction or regulatory authority of the public service commission as to rates and service; however, the rate fixing of the city is subject to court review for reasonableness. OAG 72-678 .

The public service commission has no authority to regulate the rates of a municipally owned, controlled, operated or managed sewage treatment facility. OAG 75-327 .

Although a municipally owned utility is not required to pay interest on service deposits, the deposits must be refunded where they are not used to cover delinquent accounts at the time service is discontinued. OAG 77-353 .

The public service commission has no jurisdiction or control over the operation or management of a municipally owned water system, whether it is operated inside or outside the city limits. OAG 77-410 .

A corporation which intends to establish only sewer collector lines, and not a “sewage treatment” facility as envisioned in subdivision (3)(f) of this section, would not be subject to the regulatory authority of the public service commission. OAG 79-156 . (Decision prior to 1978 amendment.)

Absent some specific provision in an agreement between the city’s utility plant board and its customers that security deposits shall be refunded to the customers prior to discontinuation of service, such deposits need not be refunded prior to discontinuation of service unless customers of the utility plant board can make other suitable arrangements about securing their bills. OAG 80-25 .

In order to promote greater economy, efficiency and improved administration, the governor may, by an executive order clearly designating the order as being one relating to reorganization, merge the energy regulatory commission and the utility regulatory commission into one commission. OAG 80-567 .

There is nothing in this chapter that requires the prior permission of the state energy regulatory commission or utility commission in order for the provisions of KRS 220.530 to be activated upon the annexation of a sanitation district by a city, particularly in view of the provisions of KRS 220.540 detailing the effect of KRS 220.010 to 220.530 on other statutes. OAG 80-639 .

A city seeking control of a utility must request approval from the Public Service Commission. OAG 02-1 .

The Public Service Commission does not necessarily have to approve entrance by a city into an adjacent territory, but when a city contracts with a utility subject to PSC regulation, this exemption is waived. OAG 02-1 .

Research References and Practice Aids

Cross-References.

Passenger vehicles, quarantine by state and local health boards, KRS 214.020 .

Poles and wires of public utilities, when required to be removed from public road, KRS 179.250 .

Relocating of utility facility on public road, cost, paid how, KRS 179.265 .

Rural electric cooperatives subject to provisions of KRS 278.010 to 278.450 , 278.990 , 279.210 .

Taxation of public utilities, KRS Ch. 136.

Utilities in cities, KRS Ch. 96.

Water company supplying city may condemn land or materials, KRS 96.080 .

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Kentucky Law Journal.

Comments, Procedures for Termination of Utility Service: The Requirements of Due Process, 64 Ky. L.J. 180 (1975-1976).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

1.Arrearages.

2.— Pass to Ratepayers.

This section and 807 KAR 5:068 permit a water district to automatically pass through to its ratepayers sums agreed to in settlement when those sums represent arrearages in water costs accrued over the 19 months preceding the district’s filing with the Public Service Commission (PSC) for the automatic increases. The allowance of the pass-through for this accumulated arrearage does no violence to the intent of this section, to the statutory framework of which this section is a part, or to the fiscal responsibility of the various water districts. Kentucky Public Service Com. v. Cumberland Falls Highway Water Dist., 834 S.W.2d 726, 1992 Ky. App. LEXIS 184 (Ky. Ct. App. 1992).

1.Purpose.

The legislature explicitly granted the right to the Public Service Commission to establish boundaries of certified areas by its enactment of this section, and granted the right to serve certified territories by the enactment of KRS 278.018(1). Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

2.Industrial Park.

The Public Service Commission correctly modified the boundary line between the certified territories of two (2) electric suppliers where the original boundary divided a proposed industrial park, even though the modification took one supplier’s territory away, where the modification avoided duplication of services, conserved resources, materials and site space, and eliminated the need to establish additional specified high voltage lines. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

1.Purpose.

The legislature explicitly granted the right to the Public Service Commission to establish boundaries of certified areas by its enactment of KRS 278.017 , and granted the right to serve certified territories by the enactment of subsection (1) of this section. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

2.Industrial Park.

The Public Service Commission correctly modified the boundary line between the certified territories of two electric suppliers where the original boundary divided a proposed industrial park, even though the modification took one supplier’s territory away, where the modification avoided duplication of services, conserved resources, materials and site space, and eliminated the need to establish additional specified high voltage lines. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

A Public Service Commission order which took part of an electric supplier’s territory and awarded it to another in order to have unified service at a proposed industrial park was not confiscating a valuable property right without compensation, where the supplier had made no investment in the territory, and the second supplier was taking no income or equipment. This section provided a statutory mechanism for modifying such territorial boundaries. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

1.In General.

Natural Resources and Environmental Protection Department (now Cabinet) properly deferred to the Energy Regulatory Commission’s (now Public Service Commission’s) interpretation of this section in determining the need for a certificate of convenience and necessity before a utility could seek preconstruction air pollution approval to build a power plant. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

2.Duty of Commission.

Duty of public service commission is to prevent ruinous competition between entities in the public service field. Cold Spring v. Campbell County Water Dist., 334 S.W.2d 269, 1960 Ky. LEXIS 223 ( Ky. 1960 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

3.Private Use.

Where a private corporation constructed a transmission line in order to be able to obtain electric service from a power company, it was not required to obtain a certificate because it did not construct the line to serve the public and did not intend to serve the public. Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ).

4.Ordinary Extensions.

A proposed expansion by a water district was not an ordinary extension of an existing system in the usual course of business where the original plant cost $1,000,000 and the expansion would cost $424,000 and would double the capacity. Covington v. Board of Comm'rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

Under any normal circumstances, if a utility has been rendering service to a tract of land owned as a single boundary, extension of the service lines to any point in the boundary to serve an owner or tenant would reasonably be considered to be an ordinary extension in the usual course of business. Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ).

5.Determination of Convenience and Necessity.

Public service commission cannot by issuing certificate to city, authorize city to maintain waterworks system for distribution of water outside city limits, where the law does not otherwise give city such power. Smith v. Raceland, 258 Ky. 671 , 80 S.W.2d 827, 1935 Ky. LEXIS 218 ( Ky. 1935 ). But see McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ); Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

This section limits the authority of the commission to the determination of whether there is a need and demand for the public service in question, and if it determines that there is such need and demand it must issue a certificate to all parties seeking a right to bid upon the franchises to be offered by political subdivisions. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

A determination of public convenience and necessity requires both a finding of the need for a new service system or facility from the standpoint of service requirements, and an absence of wasteful duplication resulting from the construction of the new system or facility. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

In a determination of the public service commission to issue a certificate of convenience and necessity to construct a steam generating plant and transmission lines for the purpose of supplying electric energy to the distribution systems of the local rural electric cooperative corporations throughout the state to the East Kentucky rural electric cooperative under KRS 278.020 where the application was opposed by companies engaged in supplying electric energy to the coops and to other distribution systems in the state, the question was not whether “more” service was required but rather whether a “new service system” or a “new service facility” was required which should be based on a showing of substantial inadequacy of existing service due to substantial deficiency of service facilities and an absence of wasteful duplication. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

The demand and need for service is to be gauged from the point of view of the consumers and narrows almost to the determination of whether there are any customers in the area. Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ).

Where telephone company had acquired from its predecessor a 20-year franchise issued by city and currently owned the existing facilities (admittedly antiquated) and had provided a needed service to the people in the area and at the time of hearing had a firm offer for adequate financing to modernize the system it was in the public interest for the commission to issue the company a certificate of convenience and necessity and the commission acted unlawfully and unreasonably in failing to do so. Blue Grass State Tel. Co. v. Public Service Com., 382 S.W.2d 81, 1964 Ky. LEXIS 332 ( Ky. 1964 ).

The granting of a certificate of convenience and necessity to a rural electric cooperative for the building of a generating plant and construction of allied facilities was authorized on the basis of a finding supported by evidence that the existing service in the area was inadequate because ordinary extensions of existing systems in the area would not supply the deficiency. Kentucky Utilities Co. v. Public Service Com., 390 S.W.2d 168, 1965 Ky. LEXIS 343 ( Ky. 1965 ).

A municipal water company is not required to obtain a certificate from the public service commission for new construction. Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

This section is not ambiguous; subsection (1) of this section applies to certificates of public convenience and necessity for new utility construction and does not prohibit a utility from applying first to other governmental agencies for other needed authority; however, subsection (3) of this section applies to certificates of convenience and necessity for franchises, licenses or other permits for utility service granted by a municipality or other governmental agency, and prohibits a utility from applying to a city or other agency for authority to serve customers before going to the Energy Regulatory Commission (now Public Service Commission) for authority to construct. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

There is a statutory distinction between subsection (1) as to construction, and subsection (3) of this section as to service; they are two different subjects, requiring consideration of different standards and different findings and resulting in certificates for different purposes. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

A utility proposing construction is not required to obtain a certificate of convenience and necessity pursuant to subsection (3) of this section before it can make application to the Natural Resources and Environmental Protection Department (now Energy and Environment Cabinet) for air increment review. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

Utilities company was not required to have a final non-appealable certificate of public convenience and necessity before initiating condemnation proceedings; moreover, the mere filing of an appeal did not stay the legal effectiveness of an order of the Kentucky Public Service Commission regarding the certificate under KRS 278.390 . Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Condemnation proceedings instituted by a utilities company were not premature because there was a reasonable assurance that the construction of the power lines would have proceeded; the company already obtained a certificate of public convenience and necessity from the Kentucky Public Service Commission. Although the award of that certificate was being appealed, the order of the Commission remained in effect. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

6.— Exception Under 10 Percent Rule.

Where a telephone company sought authority to increase its intrastate rates and two (2) security and alarm system businesses objected on the basis that the telephone company had embarked on sizable construction projects without first applying for and receiving certificates of public convenience and necessity pursuant to this section, the application by the Utility Regulatory Commission of a 10% rule, under which a new construction project of less than 10% of the net investment of the utility would not be required to have a certificate, was not unreasonable or unlawful by clear and satisfactory evidence as required by KRS 278.430 in order to set aside the order. American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

7.Duplication.

In order to constitute a “duplication” one faculty should constitute an adequate substitute for the other. Covington v. Board of Comm'rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

8.Proof of Financial Ability.

The commission has authority to deny the certificate if the company does not prove its financial ability. Public Service Com. v. Mt. Vernon Tel. Co., 300 S.W.2d 796, 1956 Ky. LEXIS 53 ( Ky. 1956 ).

9.Bidding for Franchises.

The legislature has not authorized the commission to determine who shall and who shall not be entitled to bid for franchises. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

10.Interested Parties.

Owners of lands over which would pass the transmission lines for which certificate of convenience and necessity was applied for by utilities company were not “parties interested” within the meaning of this section, and therefore they were not entitled to notice of hearing, where the question of what particular lands the proposed transmission line would cross was not in issue before the public service commission, and when the application for certificate was being considered the owners had not been determined. Satterwhite v. Public Service Com., 474 S.W.2d 387, 1971 Ky. LEXIS 113 ( Ky. 1971 ).

The Attorney General was a proper party to proceedings on an application for a certificate of public convenience and necessity where the record indicated that the consumer protection division of the Attorney General’s office intervened in the case and was an active participant in the administrative proceedings beginning with the public hearing. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

11.Exemption from Regulation.

Since a city owned water supply system was not a utility subject to the jurisdiction of the Public Service Commission, the commission was without jurisdiction to resolve a territorial dispute between a city and a private water company where the city undertook to extend its water supply system beyond city limits into a contiguous territory served by the private company. Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

12.Transmission Lines.

Transmission lines are extensions in the ordinary course of business and, under subsection (1) of this section, do not require a certificate of convenience and necessity. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

Cited:

Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), overruled in part, Bond v. United States, — U.S. —, 131 S. Ct. 2355, 180 L. Ed. 2d 269, 2011 U.S. LEXIS 4558 (U.S. 2011), overruled in part as stated, Bond v. United States, — U.S. —, 131 S. Ct. 2355, 180 L. Ed. 2d 269, 2011 U.S. LEXIS 4558 (U.S. 2011); Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); H-F-C Rural Tel. Co-op. Corp. v. Public Service Com., 269 S.W.2d 231, 1954 Ky. LEXIS 972 ( Ky. 1954 ); Corbin v. Kentucky Utilities Co., 447 S.W.2d 356, 1969 Ky. LEXIS 82 ( Ky. 1969 ); Lexington-Fayette Urban County Gov’t v. Lexhl, L.P., 315 S.W.3d 331, 2009 Ky. App. LEXIS 218 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Since a water district is obligated to serve all inhabitants within its geographical area of service as fixed under KRS 74.010 and as defined by the certificate of convenience and necessity, the water district cannot refuse water service to individuals who request it for houses constructed within the district and who tender the usual rates and comply with the usual contractual terms. OAG 75-719 .

Where an order of a county court has authorized a water district to annex territory of another water district which has transacted no business since the organizing procedures were completed but which has not been dissolved according to statutory provisions, the acquiring water district would have to satisfy the requirements of this section to obtain a certificate of convenience and necessity before beginning the construction of any plant or facility for furnishing water to the public. OAG 76-285 .

A city seeking control of a utility must request approval from the Public Service Commission. OAG 02-1 .

Contractual transactions between cities and utilities to provide a service fall within the jurisdiction of the Public Service Commission. OAG 02-1 .

Research References and Practice Aids

Cross-References.

Certificate not required for municipal electric plant, KRS 96.880 .

Utility franchises, Const., §§ 3, 163, 164; KRS 96.010 to 96.030 .

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

1.Transmission Lines.

The Eminent Domain Act did not require a certificate of environmental compatibility for the erection of electric transmission lines. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

1.Authority of Commission.

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

An order by the Public Service Commission approving a utility’s request for rate incentives and discounts was unlawful because it violated the specific mandates of KRS 278.170 . KRS 278.170 contained exclusive language regarding discounted rates, and the PSC could not utilize another statute to render the plain language of that statute a nullity; therefore, the interpretation of KRS 278.030(3) espoused by the PSC and adopted by the Circuit Court in affirming the application was contrary to the letter of the law. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008).

Defendant state commission could not require unbundling of facilities and services the Federal Communications (FCC) had determined no longer needed to be unbundled under 47 U.S.C.S. § 251 and 47 U.S.C.S. § 271(d)(2)(B), (d)(6), and KRS 278.030 , 278.040 , did not give the state commission authority to enforce § 271, thus, plaintiff incumbent local exchange carrier’s challenge was proper; the FCC’s regulation barred rates other than the open-market rate, thus, any state commission price regulation created a conflict and the preemptive force came from § 271 and the accompanying regulations, not 47 U.S.C.S. § 253. BellSouth Telecomms., Inc. v. Ky. PSC, 669 F.3d 704, 2012 FED App. 0019P, 2012 U.S. App. LEXIS 1264 (6th Cir. Ky. 2012 ).

2.Increase in Rates.

Gas company should have been allowed a hearing on the merits of its petition for a review of the commission’s refusal to allow an increase in rates without having allowed a hearing and having merely stated that it felt the increase would be inflationary given considerations of wartime stabilization policies. Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ).

3.Adequate Service.

In ordinary circumstances an indictment would not lie under this section for inadequate telephone service unless the commission had first held such service to be inadequate and ordered the company to improve same but court had jurisdiction of indictment for “unlawfully, wilfully and unreasonably failing to keep a switchboard operator on the company’s switchboard for great and unreasonable lengths of time.” Dees v. Commonwealth, 314 S.W.2d 514, 1958 Ky. LEXIS 293 ( Ky. 1958 ).

The duty of a public utility is to render adequate, efficient, and reasonable service within the scope or area of service provided for in its certificate of convenience and necessity. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

The commission’s authority to regulate rates and service of utilities and to enforce statutory provisions does not include the authority to compel a utility to furnish service over and above what is adequate and reasonable, or to forego the use of reasonable classifications as to service and rates. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

4.Quality of Service.

The quality of service is not germane to the normal, time-tested factors that go into the determination of a proper rate for the services rendered by a utility. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

5.Reduction in Rates.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6.Instructions.

Where president and general manager of telephone company was convicted on an indictment charging him with unlawfully, wilfully and unreasonably failing and refusing to furnish adequate, efficient and reasonable service within 12 months prior to the indictment judgment was reversed on ground instruction should have told the jury the switchboard service required of telephone company was that required of like or similar telephone companies operating in like or similar territory as it is well known that a rural telephone company or one operated in a small town and surrounding territory does not give the same character of service as that given by a metropolitan telephone system. Dees v. Commonwealth, 314 S.W.2d 514, 1958 Ky. LEXIS 293 ( Ky. 1958 ).

7.Variable Rates.

Imposition of a variable rate for the use of electricity upon aluminum smelters based on the fluctuating world price of aluminum was not a statutory violation and any resulting discrimination was either too uncertain or was within acceptable limits. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

8.Factors Considered.

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

9.Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

Opinions of Attorney General.

If a utility is not municipally owned and operated, then the utility would have to petition the Public Service Commission for any rate increases, regardless of whether it is operating under a franchise from local government. OAG 77-200 .

Research References and Practice Aids

Cross-References.

Municipal water or electric plant entitled to earn fair return, KRS 96.535 .

Newspapers to receive equal facilities, KRS 365.230 .

Rural electric cooperative corporation, public utility must furnish electric energy to, KRS 279.150 .

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Construction.

The public service commission law would be unconstitutional if it was construed to deprive cities of the right to regulate the manner of installing transmission facilities in the public streets. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

2.Jurisdiction of Commission.

The public service commission is an administrative body only, and cannot authorize the doing of an act prohibited by any fundamental principle of law. Smith v. Raceland, 258 Ky. 671 , 80 S.W.2d 827, 1935 Ky. LEXIS 218 ( Ky. 1935 ).

Jurisdiction to fix rates, establish service regulations, alter such regulations, and make investigations as to changes is exclusively and primarily in commission, subject to review or rehearing by courts. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Jurisdiction of the public service commission to pass upon sales of utility systems is implied necessarily from the statutory powers of the commission to regulate the service of utilities. Public Service Com. v. Southgate, Highland Heights, 268 S.W.2d 19, 1954 Ky. LEXIS 888 ( Ky. 1954 ).

The power of the Public Service Commission to determine whether a proposed purchaser of a utility system is ready, willing and able to provide adequate service is necessarily implied from the statutes. Public Service Com. v. Southgate, Highland Heights, 268 S.W.2d 19, 1954 Ky. LEXIS 888 ( Ky. 1954 ).

Public Service Commission had no jurisdiction of dispute between city and rural electric cooperative corporation over which one would serve a proposed subdivision. Warren Rural Electric Co-op. Corp. v. Electric Plant Board, 331 S.W.2d 117, 1959 Ky. LEXIS 1 ( Ky. 1959 ).

Where the city proposes to finance and build a natural gas distribution and transmission system which it will lease to a private party to operate and the private party has power to adjust the rates under certain conditions, the facility is subject to supervision and regulation of the Public Service Commission. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where a public telephone utility customer actually had two (2) separate claims in his complaint against the utility, one regarding the type and quality of service he was provided, while the other was a breach of contract claim seeking compensatory and punitive damages for the utility’s failure to provide the telephone service that he had contracted for, the subject matter jurisdiction over the two (2) claims was divided, with the public service commission having exclusive jurisdiction over the first claim while the Circuit Court had jurisdiction over the breach of contract claim. Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983).

The Public Service Commission has jurisdiction over the utility companies, and that jurisdiction extends to their poles and the “services” and “rates” generated by pole attachment agreements with cable television companies; such use provides additional revenue to the utilities which must be considered in determining the “rates” it charges its customers for its basic utility services. Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008).

Defendant state commission could not require unbundling of facilities and services the Federal Communications (FCC) had determined no longer needed to be unbundled under 47 U.S.C.S. § 251 and 47 U.S.C.S. § 271(d)(2)(B), (d)(6), and KRS 278.030 , 278.040 , did not give the state commission authority to enforce § 271, thus, plaintiff incumbent local exchange carrier’s challenge was proper; the FCC’s regulation barred rates other than the open-market rate, thus, any state commission price regulation created a conflict and the preemptive force came from § 271 and the accompanying regulations, not 47 U.S.C.S. § 253. BellSouth Telecomms., Inc. v. Ky. PSC, 669 F.3d 704, 2012 FED App. 0019P, 2012 U.S. App. LEXIS 1264 (6th Cir. Ky. 2012 ).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

3.— Interstate Commerce.

Local activities within Kentucky of company engaged predominantly in transportation of gas in interstate commerce were not subject to regulation by public service commission, though some of the gas originated and was sold in Kentucky. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

4.— Contract Rights.

Although prior approval of a contract of sale of water and ice company did not estop it from subsequently changing rates therein when necessary for public interest, annual payment for a term of 20 years was an essential item of consideration for the sale of ice and water plants and was not a rate and therefore was not subject to change by the commission during that term. Fern Lake Co. v. Public Service Com., 357 S.W.2d 701, 1962 Ky. LEXIS 137 ( Ky. 1962 ).

Where the operator of a sewage treatment plant which serviced two Jefferson County schools applied to the Commission for a rate increase, despite the fact that neither he nor the board of education had attempted to renegotiate the rates or submit the rate increase to arbitration, as required by the parties’ contract, the Commission had the right to regulate the rates pursuant to subsection (2) of this section, regardless of the provisions of the contract, and, once the matter had been presented to the Commission and decided by it, appeal could only be taken to the Franklin Circuit Court, pursuant to KRS 278.410 , rather than to the Jefferson Circuit Court. Board of Education v. William Dohrman, Inc., 620 S.W.2d 328, 1981 Ky. App. LEXIS 281 (Ky. Ct. App. 1981).

5.Rules and Regulations.

Rules and regulations of commission duly adopted pursuant to this section have the force and effect of law but a rule of the commission requiring a public utility to give notice of rate increase was invalid as a substantial alteration of KRS 278.180 . Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Where a statute lays down general standards, the administrative agency may implement the statute by filling in the necessary details, but where the statute in itself prescribes the exact rules and regulations of procedure the administrative agency may not add to or subtract from such provision. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Subsection (2) of this section vests exclusive jurisdiction over utility “service,” as defined in KRS 278.010(13), in the energy regulatory commission; accordingly, regulations adopted by the commission concerning the placement of gas meters preempt the field, and any conflicting city ordinances attempting to restrict the placement of the meters are invalid. Peoples Gas Co. v. Corbin, 625 S.W.2d 848, 1981 Ky. LEXIS 309 ( Ky. 1981 ).

6.Findings and Orders.

A finding and order of the commission, while not a judgment with the attributes of a final judgment or decree of a judicial tribunal, has the effect of a legislative act as to the parties to the proceeding and is very far reaching in its operation. It is conclusive when made within the scope of its authority and binding on all parties subject to review by the courts. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

7.Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

8.Powers of Cities.

The provision of Const., § 201 permitting the consolidation of competing telephone companies with the consent of the railroad commission and of the city in which they operate was intended to authorize cities to attach conditions to consolidation of utilities which would deprive the state of its inherent power to regulate rates. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

The law creating the Public Service Commission divested cities of the power to regulate rates and reposed that power in the commission. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

The reservation of the powers of cities contained in subsection (2) of this section is an express limitation upon the powers of the Public Service Commission. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

City may require light and power company to place its wires underground. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

Cities are not deprived of jurisdiction over utilities except with respect to rates and service. “Service” relates only to quantity and quality, and cities may regulate the manner of installing transmission facilities so long as such regulation does not affect the quantity or quality of service. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ). But see McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ); Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

9.Adequate and Reasonable Service.

The commission’s authority to regulate rates and service of utilities and to enforce statutory provisions does not include the authority to compel a utility to furnish services over and above what is adequate and reasonable, or to forego the use of reasonable classifications as to service and rates. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

10.Equal Service.

The commission has authority to require that a utility provide an advanced quality of service to a particular area with the cost borne system-wide rather than by the patrons of the particular area, if the utility is furnishing a similarly advanced quality of service to comparable areas and spreading the cost system-wide. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

11.Separate Questions.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Cited:

American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981); South Cent. Bell Tel. Co. v. Public Service Com., 702 S.W.2d 447, 1985 Ky. App. LEXIS 717 (Ky. Ct. App. 1985); Telamarketing Communications, Inc. v. Liberty Partners, 798 S.W.2d 462, 1990 Ky. LEXIS 109 ( Ky. 1990 ); North Shelby Water Co. v. Shelbyville Municipal Water & Sewer Com., 803 F. Supp. 15, 1992 U.S. Dist. LEXIS 20585 (E.D. Ky. 1992 ); Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ); Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Opinions of Attorney General.

Municipal utilities are exempt from the jurisdiction of both the energy regulatory commission and the utility regulatory commission. OAG 79-474 .

In order to promote greater economy, efficiency and improved administration, the governor may, by an executive order clearly designating the order as being one relating to reorganization, merge the energy regulatory commission and the utility regulatory commission into one commission. OAG 80-567 .

Research References and Practice Aids

Cross-References.

Duty to assist in valuation of electric plant to be acquired by municipality, KRS 96.580 .

Commission has no power over rates and service of municipal electric plants, KRS 96.880 .

Regulation of utilities by cities, KRS Ch. 96.

Rural electric cooperatives subject to jurisdiction of commission, KRS 279.210 .

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Comments, Procedures for Termination of Utility Service: The Requirements of Due Process, 64 Ky. L.J. 180 (1975-1976).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

1.Constitutionality.

The provisions in this section which authorize the interim legislative committee to advise and consent on certain appointments to the Public Service Commission are invalid as an impermissible incursion into the appointment power of the executive branch of government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

1.Record of Proceedings.

Where proceedings in rate case were regular, and proper record was kept as required by this section and KRS 278.360 , commission had power to sign and record order nunc pro tunc as of date of decision, and could be compelled to do so by mandamus. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

1.Interstate Commerce.

Commission was without authority to make assessments against company engaged predominantly in transportation of gas in interstate commerce, though some of the gas originated and was sold in Kentucky. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

Opinions of Attorney General.

A city is without authority to levy an occupational license tax on the operations of Southern Bell Telephone & Telegraph Company within the corporate limits of the city. OAG 62-644 .

A city is without authority to levy an occupational license tax on the operations of an electric power company within the corporate limits of the city. OAG 63-592 .

In view of the exclusive assessment power against public utilities contained in subsection (2) of this section, a city may not levy an occupational license tax on a public utility operating in that city. OAG 82-93 .

Research References and Practice Aids

Cross-References.

Taxation of utilities, KRS Ch. 136.

1.Recovery of Excess Rate.

In action to recover amount paid for electricity in excess of legal rate, petition failing to plead under what law defendant was limited to rates set out in petition or how the law limited the rates was fatally defective. Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ).

2.Recovery of Underbilling.

The defense of equitable estoppel was not available to a customer in Kentucky to defeat the claim of a utility to recover the amount of an underbilling. Boone County Sand & Gravel Co. v. Owen County Rural Electric Cooperative Corp., 779 S.W.2d 224, 1989 Ky. App. LEXIS 94 (Ky. Ct. App. 1989).

3.Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

4.Violation.

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated this section’s requirement that utilities have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While KRS 278.010(3) sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Cited:

Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007); Bowers v. Windstream Ky. E., LLC, 709 F. Supp. 2d 526, 2010 U.S. Dist. LEXIS 45076 (W.D. Ky. 2010 ).

1.Applicability.

An order by the Public Service Commission approving a utility’s request for rate incentives and discounts was unlawful because it violated the specific mandates of KRS 278.170 . KRS 278.170 contained exclusive language regarding discounted rates, and the PSC could not utilize another statute to render the plain language of that statute a nullity; therefore, the interpretation of KRS 278.030(3) espoused by the PSC and adopted by the Circuit Court in affirming the application was contrary to the letter of the law. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

2.Evidence.

Where telephone subscribers sought a public service commission order requiring telephone company to provide toll-free extended area service from subscribers’ community to an economic center, subscribers failed to produce evidence showing the maintenance of similar service for other comparable localities and thus subscribers failed to establish discrimination which would support such an order. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

3.Equality of Service.

The public service commission had the authority to require the cost of a particular kind of service in a particular area to be borne system-wide rather than by the patrons of the particular area and to require the utility to provide an advanced quality of service to a particular area, if the area, as compared to other fully comparable areas, was spreading the cost system-wide and was furnishing the advanced quality of service, since the utility must employ reasonable classifications under KRS 278.030 and, under this section must not engage in discrimination by establishing or maintaining any unreasonable difference between localities or between classes of service for doing a like and contemporaneous service under the same or substantially the same conditions. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

4.Variable Rates.

Imposition of a variable rate for the use of electricity upon aluminum smelters based on the fluctuating world price of aluminum was not a statutory violation and any resulting discrimination was either too uncertain or was within acceptable limits. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

5.Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ); PSC of Ky. v. Commonwealth, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Opinions of Attorney General.

Since a water district is under an obligation to serve all inhabitants within its geographical area of service as fixed under KRS 74.010 and as defined by the certificate of convenience and necessity, the water district cannot refuse water service to individuals who request it for houses constructed within the district and who tender the usual rates and comply with the usual contractual terms. OAG 75-719 .

Since a water district organized and functioning under the provisions of KRS Chapter 74 is a public utility subject to the jurisdiction of the Public Service Commission, this section is applicable; while a utility may grant free or reduced rates to charitable and eleemosynary institutions, a fire district organized under KRS Chapter 75 is not such an institution. Thus, there is no authority for requiring the water district to furnish water free of charge to a fire protection district. OAG 84-147 .

Research References and Practice Aids

Cross-References.

Free or reduced rate transportation for public officers forbidden, Const., § 197.

Newspapers to receive equal facilities, KRS 365.230 .

1.Application.

A sewer district could put into effect a change of rates without first submitting the change to the Public Service Commission for its approval under this section since it is not a public utility as defined by KRS 278.010 . Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ) (decision prior to 1964 amendment of KRS 278.010 ).

2.Notice.

A rule of the Public Service Commission relative to giving of notice by a public utility of a rate increase was invalid for the reason that it undertook to materially alter this section. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Cited:

Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Constitutionality.

This section allows a balancing of interests of investors and ratepayers and, therefore, does not violate due process. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

This section is not invalid special legislation since it is uniform upon the class to which it applies, the class in question is that of electric utilities and not utility costs, and the section does not single out any utility for special treatment. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

2.Protestant’s Rights.

Protestants received their due process rights where (1) public notice was given, (2) they intervened in the action and conducted a vigorous examination of every aspect of the surcharge application at issue, and (3) they were permitted discovery, full participation in the hearing, the use of expert witnesses and to cross-examine the utility’s witnesses, as well as to file comprehensive and cogent briefs. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

3.Retroactive Application.

This section was applied retroactively in violation of KRS 446.080(3) by a Public Service Commission order which allowed a utility company to recover environmental expenditures incurred before January 1, 1993. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

4.Costs of Affliates.

Under KRS 278.183 , a Kentucky electric utility, which had a federally approved power pooling agreement with out-of-state affiliates, could recover through an environmental surcharge its share of the environmental compliance equipment costs incurred by those affiliates; the Kentucky Public Service Commission’s determination that those were “its costs” was not unreasonable. Commonwealth ex rel. Stumbo v. Ky. Pub. Serv. Comm'n, 243 S.W.3d 374, 2007 Ky. App. LEXIS 478 (Ky. Ct. App. 2007).

Cited:

Kentucky PSC v. Commonwealth Ex Rel. Stumbo, — S.W.3d —, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. 2008).

1.Refund of Excess Rates.

A utility need not make refund of excess rates collected until after the final termination of the litigation. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

2.Interest on Refunds.

The determination as to whether interest is allowed on a refund is within the sound discretion of the commission. The amount of that interest must also be within the sound discretion of the agency. Commonwealth ex rel. Beshear v. Kentucky Utilities Co., 648 S.W.2d 535, 1982 Ky. App. LEXIS 288 (Ky. Ct. App. 1982).

Where the commission in 1974 ordered an electric power company to pay 6% interest on its refunds to its customers of excessive rates collected during 1974, and the company appealed that decision until 1981 when the appellate court ruled in favor of the commission, the commission did not abuse its discretion in ordering the company to pay 6% interest on the overcollections for 1974, and 10% interest on the money it improperly withheld from its customers from 1974 to 1981, where the evidence showed that the prime rate of interest had risen from over 6% in 1974 to over 20% in 1980 and the company’s long-term bonds were earning an average of 10% over the same time span. Commonwealth ex rel. Beshear v. Kentucky Utilities Co., 648 S.W.2d 535, 1982 Ky. App. LEXIS 288 (Ky. Ct. App. 1982).

3.Federal Court Jurisdiction.

Fact that state law denies injunctive relief from enforcement of rate-making commission’s order allowing an increase in rates substantially below those sought by the telephone utility company pending a review of the commission’s order does not mean the utility lacks a “plain, speedy and efficient remedy” sufficient to confer jurisdiction on the federal courts. South Cent. Bell Tel. Co. v. PSC, 420 F. Supp. 376, 1976 U.S. Dist. LEXIS 13069 (E.D. Ky. 1976 ).

Cited:

Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983); Kentucky Am. Water Co. v. Commonwealth, 847 S.W.2d 737, 1993 Ky. LEXIS 24 ( Ky. 1993 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Originate and Establish.

The words “originate” and “establish” in this section refer to the power of the commission to institute proceedings on its own motion, and do not mean that the commission has the power to fix rates and service standards in the initial granting of a franchise by a city. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

2.Contracts Prior to Act.

The power of cities to contract with respect to utility rates does not deprive the state of its police power of regulation; but this power was not exercised before June 14, 1934, when KRS 278.010 to 278.450 were enacted, and therefore contracts made before that date are valid. Union Light, Heat & Power Co. v. Covington, 282 Ky. 558 , 139 S.W.2d 64, 1940 Ky. LEXIS 208 ( Ky. 1940 ).

3.Nonexempt Utilities.

Cities have been divested of the power to regulate rates of nonexempt utilities and that power is now in the commission. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

Cities are not authorized under Const., § 201 to attach conditions to the consolidation of utility companies which will deprive the state of its inherent power to regulate rates of nonexempt utilities. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

When a city seeks a change in rates of a nonexempt public utility, it must follow the procedure prescribed by KRS 278.260 , the same as other permitted to file complaints. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

A city, in granting a public utility franchise, whether an entirely new franchise or a renewal of a prior one, has the right to prescribe the character of service to be rendered and the rates to be charged at the beginning; thereafter the exclusive power to regulate the rates and service is vested in the commission. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

Where the city proposed to issue revenue bonds to construct a natural gas distribution and transmission system which it proposed to lease to a private party to operate and the private party had the power to adjust the rates under certain conditions, the facility is a nonexempt “utility” and the commission has power to regulate rates fixed by it. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

4.Water District.

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

Cited:

Daugherty v. Lexington, 249 S.W.2d 755, 1952 Ky. LEXIS 857 ( Ky. 1952 ); Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ).

Opinions of Attorney General.

A water district is subject to the jurisdiction of the utility regulatory commission and its contract or agreement with a city may be changed by the commission, pursuant to this section, in connection with any rate or service standard that may have been established by such contract or agreement and the commission’s power to regulate rates authorizes it to change or modify rates fixed by contract and its power to do so cannot be limited by provisions in the contract between the regulated utility and the city; also, generally such a contract is voidable only in that it cannot stand against a properly enacted modification of the commission. OAG 81-44 .

Research References and Practice Aids

Cross-References.

Regulation of utilities by cities, KRS Ch. 96.

1.Constitutionality.

KRS 278.214 was not preempted by federal law, because KRS 278.214 was complementary and sequential to Federal Energy Regulatory Commission Order 888, 61 Fed. Reg. 21,540, and the applicable open access nondiscriminatory transmission tariffs; the federal laws regulated curtailments effectuated by the transmission providers, and the state law regulated the curtailments effectuated by transmission owners. Ky. Power Co. v. Huelsmann, 352 F. Supp. 2d 777, 2005 U.S. Dist. LEXIS 1339 (E.D. Ky. 2005 ).

KRS 278.214 is unconstitutional as it violates the dormant Commerce Clause, U.S. Const. art. I, § 8, by providing curtailment preference only to Kentucky customers and disadvantaging all similarly situated customers located outside Kentucky borders. Ky. Power Co. v. Huelsmann, 352 F. Supp. 2d 777, 2005 U.S. Dist. LEXIS 1339 (E.D. Ky. 2005 ).

1.Companies Engaged in Interstate Commerce.

Though local activities of gas transportation company were not subject to state regulation because company was primarily engaged in interstate commerce, commission could require company to disclose information as to its relations with wholesale customers. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

2.Enforcement of Orders.

Federal injunction would not lie to restrain Public Service Commission from enforcing order for investigation of rates charged by natural gas pipeline company, since cost of $25,000 in preparing and presenting company’s case before commission would not constitute irreparable injury justifying equitable intervention. Petroleum Exploration, Inc. v. Public Service Com., 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Federal court would not enjoin commission from enforcing order for investigation of rates charged by pipeline company, since commission cannot compel obedience of order except by action in state court where company’s rights would be protected. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Cited:

Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ); Stansbury v. Maupin, 599 S.W.2d 170, 1980 Ky. LEXIS 218 ( Ky. 1980 ).

1.Cost of Feasibility Study.

The Public Service Commission has no authority, under this section, to impose the cost for a merger feasibility study on utilities who are the subject of the study, undertaken pursuant to KRS 74.361 . Public Serv. Comm'n v. Attorney Gen. of Commonwealth, 860 S.W.2d 296, 1993 Ky. App. LEXIS 111 (Ky. Ct. App. 1993).

1.Jurisdiction of Commission.

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where a public telephone utility customer actually had two (2) separate claims in his complaint against the utility, one regarding the type and quality of service he was provided, while the other was a breach of contract claim seeking compensatory and punitive damages for the utility’s failure to provide the telephone service that he had contracted for, the subject matter jurisdiction over the two (2) claims was divided, with the public service commission having exclusive jurisdiction over the first claim while the Circuit Court had jurisdiction over the breach of contract claim. Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983).

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated KRS 278.160 requiring utilities to have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While KRS 278.010(3) sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

2.Jurisdiction of Courts.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Federal injunction would not lie to restrain Public Service Commission from enforcing order for investigation of rates charged by natural gas pipeline company, since cost of $25,000 in preparing and presenting company’s case before commission would not constitute irreparable injury justifying equitable intervention. Petroleum Exploration, Inc. v. Public Service Com., 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Federal court would not enjoin commission from enforcing order for investigation of rates charged by pipeline company, since commission cannot compel obedience of order except by action in state court where company’s rights would be protected. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

Although Public Service Commission has jurisdiction over questions concerning rates and services generally, nevertheless, when a question arises which is peculiar to individual complainant, courts will assume jurisdiction and hear the matter. Bee's Old Reliable Shows, Inc. v. Kentucky Power Co., 334 S.W.2d 765, 1960 Ky. LEXIS 230 ( Ky. 1960 ).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

3.Complaint of Individual.

The legislature is authorized to fix number of complainants at ten before commission is required to act on complaint, and to make it discretionary with the commission as to whether it will act on complaint of single person since that person still has right to appeal to courts if commission does not act on his complaint. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

The commission may, upon its own motion, hear and determine the complaint of an individual, but is not required to do so. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

4.Formal Public Hearing.

A “formal hearing” is analogous to a common-law hearing and includes the right to reasonably know the charges, the right to meet such charges by competent evidence, and the right to be heard by counsel upon the probative force of the evidence adduced by both sides and the law applicable thereto and a “public hearing” means a completed public hearing, therefore an order of continuance of the commission constituted a determination by the commission that the hearing was not completed and it could not grant an order for reduction of rates before it completed the hearing. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

The determination of when a hearing is or is not completed rests exclusively with the commission, and the right of judicial review is limited by KRS 278.410 to a consideration or whether its order is unlawful or unreasonable. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

5.Cities.

When cities seek a change in public utility rates for franchised utilities, they must follow the procedure prescribed by this section, the same as others permitted to file complaints. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

6.Quality of Service.

The quality of service is not germane to the normal, time-tested factors that go into the determination of a proper rate for the services rendered by a utility. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

7.Separate Determinations.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

8.Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

9.Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

Opinions of Attorney General.

The reasonableness of action by the board of commissioners of a water district in deciding whether to extend its system to an entirely new section within its certificated area can be measured in terms of the certificated area, the new area to be served, the need and cost of such extension, the financial impact of the extension upon the public service company, and the impact upon the total service available to the general public of the certificated area. OAG 75-719 .

In the absence of fraud, corruption, or arbitrary action, the judgment of the board of commissioners of a water district as to extensions of the system to an entirely new section within its certificated area is beyond judicial control, since the commissioners of the district exercise a discretionary function in deciding whether to extend its system. OAG 75-719 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Application.

KRS 96.530 and this section are not inconsistent, the former applying only to utility plants operated by cities and this section to utility plants operated by private persons. Vanceburg v. Plummer, 275 Ky. 713 , 122 S.W.2d 772, 1938 Ky. LEXIS 502 ( Ky. 1938 ), overruled, Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ). See McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

2.Enforcement of Orders.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

The sole authority for making commission’s orders coercively effective rests with court in which mandamus proceedings or action to recover penalties is instituted. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The determination of when a hearing is or is not completed rests exclusively with the commission, and the right of judicial review is limited by KRS 278.410 to a consideration of whether its order is unlawful or whether its order is unlawful or unreasonable. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

3.Clerical Error.

A nunc pro tunc order correcting a clerical error is not a new rate order requiring notice and hearing under this section. Mike Little Gas Co. v. Public Service Com., 574 S.W.2d 926, 1978 Ky. App. LEXIS 640 (Ky. Ct. App. 1978).

4.Factors Considered.

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one (1) of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

5.Separate Determinations.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6.Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

7.Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

8.Retroactive Rate Reduction.

Public Service Commission (PSC) erred in requiring a local exchange carrier that was a Bell Operating Company to refund sums that exceeded the proper rate as prescribed by the Federal Communications Commission in its Wisconsin Order of 2002. The Wisconsin Order did not require carriers to seek adjustment of their filed rates on their own, but to await action by a state commission; the rate that had been approved by the PSC in 1999 remained the “filed rate” and under KRS 278.270 could not be altered retroactively by the PSC. Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Cited:

Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ).

1.Generally.

Court of Appeals of Kentucky agrees with the Kentucky Public Service Commission that the inclusion of Ky. Rev. Stat. Ann. § 154.27-020 (2) in Ky. Rev. Stat. Ann. § 278.271 allows the Commission, at its option, to consider that one of the Commonwealth's goals is to offer incentives to induce the location of innovative energy-related businesses in the Commonwealth. The Court of Appeals also agrees with the Commission that an agreement for biomass energy does not have to be the least cost effective alternative to be deemed fair, just, and reasonable. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

Fact that a contract is for the purchase of biomass energy does not make it, per se, reasonable. Ky. Rev. Stat. Ann. § 278.271 is clear that the Kentucky Public Service Commission must still assess the reasonableness of a proposed biomass agreement even if that agreement meets the goals of Ky. Rev. Stat. Ann. § 154.27-020 (2). While the fact that an agreement meets the goals of § 154.27-020 (2) is a factor the Commission may consider, it is not the determinative factor. Fairness, justness, and reasonableness remain the determinative considerations. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

Court of Appeals of Kentucky believes that the General Assembly's intent was for Ky. Rev. Stat. Ann. § 278.271 to inject another factor into the Kentucky Public Service Commission's reasonableness calculus when dealing with biomass energy. The Court of Appeals cannot accept that the General Assembly intended for the policy goals of Ky. Rev. Stat. Ann. § 154.27-020 (2) to obviate the Commission's need to consider cost and necessity or to excuse a lack of evidence indicating that the agreement provides some benefit to the consumers that will ultimately bear its cost. Likewise, the Court of Appeals does not believe the statutes should be construed as standing for the proposition that all contracts with innovative energy-related businesses will necessarily have a net benefit to the public in terms of job creation and the expansion of the tax base. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

1.Service.

2.— Extension.

A public utility can be compelled to release any reasonable extension of its service facilities within its certificated scope or area of service. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

3.— Restoration.

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

4.Mandatory Rule Change.

While the public service commission has the power to make appropriate findings and order change in a rule, and such a change may result in ordering transfer of a gas entitlement, the commission could not order transfer of a manufacturer’s gas entitlement in violation of utility’s no-transfer rule, without following the appropriate procedure and ordering a change in the rule. Croke v. Public Service Com., 573 S.W.2d 927, 1978 Ky. App. LEXIS 613 (Ky. Ct. App. 1978).

5.Illegal Rate Reduction.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6.Jurisdiction of Courts.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

7.Complaint of Individual.

The commission may, upon its own motion, hear and determine the complaint of an individual, but is not required to do so. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

Cited:

Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); North Shelby Water Co. v. Shelbyville Municipal Water & Sewer Com., 803 F. Supp. 15, 1992 U.S. Dist. LEXIS 20585 (E.D. Ky. 1992 ).

Research References and Practice Aids

Cross-References.

Order as to extension of service by municipal electric plant, KRS 96.880 .

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Rate Base.

It is net operating income that is related to the rate base in determining what will constitute a reasonable rate of return and where company was crediting interest back as income other than operating income, which did not have the effect of reducing the net operating income requirements commission properly refused to include plant under construction in the rate base. Citizens Tel. Co. v. Public Service Com., 247 S.W.2d 510, 1952 Ky. LEXIS 709 ( Ky. 1952 ).

Commission properly refused to include the cost of over-adequate facilities in the rate base. Fern Lake Co. v. Public Service Com., 357 S.W.2d 701, 1962 Ky. LEXIS 137 ( Ky. 1962 ).

2.Depreciation Expense.

Depreciation expense on a publicly-owned water district plant that has been purchased by federal grants and contributions and/or customer tap-on fees should be allowed in the revenue requirement because the water district has no private investor capital and its rates do not generate a return on rate base. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The proper rate-making treatment for depreciation expense of contributed property of publicly held water districts is to allow depreciation on contributed plant as an operating expense; the fact that the utility did not make an investment in the plant is of no consequence in the context of publicly-owned facilities. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The Public Service Commission’s disallowance of rate of recovery for depreciation expense on contributed property of the publicly held water district was arbitrary, capricious and confiscatory. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The purpose of depreciation expense as applied to nonprofit water districts does not relate to a recoupment of investment; the overriding statutory concept is renewal and replacement. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

Water districts are entitled to take depreciation expense on contributed property even though this state is an original value state, because original cost is only one factor to be considered in valuing the utility’s property, and the Public Service Commission must consider various factors, including cost of reproduction as a going concern. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

3.Factors Considered.

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one (1) of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

There is no clear reason from the definition of a co-op “system” in KRS 279.010 which requires an interpretation that the Public Service Commission must value only property used and useful in setting utility rates, especially with the concept that only that property which is fully utilized may be valued. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

This section appears to afford the Public Service Commission broad discretion in factors to be considered in ratemaking. It is certainly broad enough to consider such things as replacement cost, debt retirement, operating cost, and at least some excess capacity in order to insure continuation of adequate service during periods of high demand and some potential for growth and expansion. It also allows for consideration of whether expansion investments were prudently or imprudently made, and whether a particular utility is investor owned or a cooperative operation. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

Research References and Practice Aids

Cross-References.

Assistance in appraisal of electric plant proposed to be purchased by municipality, KRS 96.580 .

1.Order Nunc Pro Tunc.

Where proceedings in rate case were regular, and proper record was kept as required by this section and KRS 278.100 , commission had power to sign and record order nunc pro tunc as of date of decision, and could be compelled to do so by mandamus. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

Cited:

Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ); Inter-County Rural Electric Co-operative Corp. v. Public Service Com., 407 S.W.2d 127, 1966 Ky. LEXIS 139 ( Ky. 1966 ).

1.Order.

Where commission failed to enter an order waiving noncompliance by utility company with any requirements of rule of commission there was no waiver since the commission speaks and acts only through written orders. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

1.Construction.

This section clearly provides that the Public Service Commission retains authority to modify its orders until they are suspended or vacated by a court of competent jurisdiction. Mike Little Gas Co. v. Public Service Com., 574 S.W.2d 926, 1978 Ky. App. LEXIS 640 (Ky. Ct. App. 1978).

2.Court Sole Authority for Enforcement.

The sole authority for making commission’s orders coercively effective rests with court in which mandamus proceedings or action to recover penalties is instituted. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

3.Duration of Order.

An order of the Public Service Commission fixing rates for a telephone utility continues in force until revoked or modified by the commission or unless suspended or vacated in whole or in part by the circuit court. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

Utilities company was not required to have a final non-appealable certificate of public convenience and necessity before initiating condemnation proceedings; moreover, the mere filing of an appeal did not stay the legal effectiveness of an order of the Kentucky Public Service Commission regarding the certificate under KRS 278.390 . Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Condemnation proceedings instituted by a utilities company were not premature because there was a reasonable assurance that the construction of the power lines would have proceeded; the company already obtained a certificate of public convenience and necessity from the Kentucky Public Service Commission. Although the award of that certificate was being appealed, the order of the Commission remained in effect. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Cited:

South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

1.Final Order.

Order of the Public Service Commission is conclusive when made within the scope of its authority and binding upon all parties except a review thereof may be had by the courts. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

The determination of when a hearing is or is not completed rests exclusively with the public service commission and the right of judicial review is limited by this section to a consideration of whether its order is unlawful or unreasonable and where the commission through its order of continuance has determined the hearing was not completed the court is precluded from considering the question of whether or not the hearing could have been considered a completed hearing had the commission denied motion for continuance. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

Letter written by commission, which found that charges by electric power company for installation, removal, connecting and disconnecting service for a carnival were not unreasonable, and stating that letter could be used by carnival as a refusal of commission to take any further action was not a final order which carnival could appeal to circuit court, and carnival had no obligation to attempt an appeal from commission’s refusal to act. Bee's Old Reliable Shows, Inc. v. Kentucky Power Co., 334 S.W.2d 765, 1960 Ky. LEXIS 230 ( Ky. 1960 ).

Statute provides alternative timelines for review depending upon whether an application for rehearing is filed or not, but when one party has filed a motion for rehearing, it delays finality, allowing both parties to wait to appeal until after the final order on rehearing is issued. Potts v. Pub. Serv. Comm'n, 2021 Ky. App. LEXIS 102 (Ky. Ct. App. Sept. 24, 2021).

2.Burden of Proof.

An appeal from commission is from an administrative and quasi-legislative body and it is only necessary that complaining party show by clear and convincing proof that the ruling toward which complaint is directed is either unlawful or unreasonable. Lexington Tel. Co. v. Public Service Com., 311 Ky. 584 , 224 S.W.2d 423, 1949 Ky. LEXIS 1150 ( Ky. 1949 ), overruled, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

3.Introduction of Evidence.

A water district had the right to a meaningful opportunity to be heard as to the issue of the allowability of depreciation expense on contributed property, and nothing contained in the provisions of KRS 278.440 or this section changed that conclusion; accordingly, the Circuit Court did not err in remanding the case back to the Public Service Commission in order that both parties might introduce evidence on that issue. Public Service Com. v. Warren County Water Dist., 642 S.W.2d 594, 1982 Ky. App. LEXIS 266 (Ky. Ct. App. 1982).

4.Refusal of Commission to Act.

If commission, in its discretion, refuses to act upon complaint brought by one person, he may still appeal to the courts. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

5.Action in Circuit Court.

Kentucky Rules of Civil Procedure applied to an action seeking review of a Public Service Commission order; while a builder seeking review of a commission order erred by directing service of process to incorrect parties, the summonses nevertheless issued in good faith, and since the action was otherwise timely commenced, a trial court’s dismissal of the action was improper and was reversed. Arlinghaus Builders v. Ky. PSC, 142 S.W.3d 693, 2003 Ky. App. LEXIS 342 (Ky. Ct. App. 2003).

6.—Exclusive Jurisdiction.

Where the operator of a sewage treatment plant which serviced two (2) Jefferson County schools applied to the Commission for a rate increase, despite the fact that neither he nor the board of education had attempted to renegotiate the rates or submit the rate increase to arbitration, as required by the parties’ contract, the Commission had the right to regulate the rates pursuant to subsection (2) of KRS 278.040 , regardless of the provisions of the contract, and, once the matter had been presented to the Commission and decided by it, appeal could only be taken to the Franklin Circuit Court pursuant to this section rather than the Jefferson Circuit Court. Board of Education v. William Dohrman, Inc., 620 S.W.2d 328, 1981 Ky. App. LEXIS 281 (Ky. Ct. App. 1981).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

7.— Time for Filing.

This section provides exclusive method by which order of commission can be reviewed by Circuit Court, and to obtain review it is necessary that action be filed against commission, an indispensable party, within 20-day period. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corp., 361 S.W.2d 300, 1962 Ky. LEXIS 242 ( Ky. 1962 ).

8.— Judgment.

Judgment of Circuit Court that commission had jurisdiction to determine merits of application for order and confirming the order was res adjudicata of the validity of the order. Williamson v. Public Service Com., 295 Ky. 376 , 174 S.W.2d 526, 1943 Ky. LEXIS 245 ( Ky. 1943 ).

9.Injunctive Relief.

A utility company is entitled to temporary injunctive relief from the order of the rate-making commission only if it establishes that there is a reasonable probability that it will succeed on final hearing in proving that the rate set by the commission is confiscatory, in the constitutional sense of being unjust and unreasonable. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

10.Notice to Parties.

The minimum requirement for notice is service of a copy of the complaint on all parties of record before the commission and this section requires the giving of notice, that is actual notice, at least the receipt of a letter. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where the consumer protection division of the Attorney General’s office became a party to proceedings on an application for a certificate at the administrative level and as such was a necessary party in the reviewing process it was the responsibility of those seeking review to give notice by means of the issuance of summons of process, or to demonstrate by other concrete evidence the receipt of notice, so that all proper parties are fully apprised before the reviewing court and in position to participate in the entire appellate proceedings; a certificate or affidavit of sending notice was not sufficient to provide such notices. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

11.Interested Parties.

This section does not limit the participating parties to the commission and the applicant; the commission is an indispensable party but that does not rule out other parties. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Kentucky Public Service Commission (Commission) was entitled to a writ of prohibition as to a trial court hearing an interlocutory appeal of the Commission’s order denying real parties in interest intervention in a rate-making case because (1) the parties had no such right, as the parties could only request intervention, (2) whether to grant intervention was solely within the Commission’s discretion, (3) ordering the Commission to grant intervention interfered with the Commission’s proceedings, exceeded the court’s jurisdiction, and did not meet the collateral order rule, (4) the rule of civil procedure on intervention did not apply, as the Commission’s regulation controlled, and (5) the court had no Declaratory Judgment Act jurisdiction, so the court’s orders were void ab initio. PSC of Ky. v. Shepherd, 2019 Ky. App. LEXIS 31 (Ky. Ct. App. Mar. 6, 2019), rev'd, 2020 Ky. Unpub. LEXIS 37 (Ky. May 28, 2020).

Court interprets the “any party” language in the 1952 and current version of the statute as allowing persons seeking to be parties pursuant to a proper motion for intervention before the Public Service Commission of Kentucky which was denied to be parties for purposes of challenging the denial of such motion. Potts v. Pub. Serv. Comm'n, 2021 Ky. App. LEXIS 102 (Ky. Ct. App. Sept. 24, 2021).

12.Standard of Review.

An order of the PSC can be vacated or set aside only if it is unlawful or unreasonable. To be unlawful, an order must violate a state or federal statute or a constitutional provision. To be unreasonable, an order must be unsupported by substantial evidence and it must be determined that the evidence presented leaves no room for difference of opinion among reasonable minds. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Cited:

South Cent. Bell Tel. Co. v. PSC, 420 F. Supp. 376, 1976 U.S. Dist. LEXIS 13069 (E.D. Ky. 1976 ); Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); Goodwin v. Louisville, 309 Ky. 11 , 215 S.W.2d 557, 1948 Ky. LEXIS 1013 ( Ky. 1948 ); Citizens Tel. Co. v. Public Service Com., 247 S.W.2d 510, 1952 Ky. LEXIS 709 ( Ky. 1952 ); Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corp., 362 S.W.2d 498, 1962 Ky. LEXIS 260 ( Ky. 1962 ); American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Com., 379 S.W.2d 450, 1964 Ky. LEXIS 240 ( Ky. 1964 ); Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ); Inter-County Rural Electric Co-operative Corp. v. Public Service Com., 407 S.W.2d 127, 1966 Ky. LEXIS 139 ( Ky. 1966 ); Kentucky Power Co. v. Energy Regulatory Com., 623 S.W.2d 904, 1981 Ky. LEXIS 295 ( Ky. 1981 ); Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983); National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990); Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 9 8 (Ky. Ct. App. 1996); Kentucky PSC v. Shadoan, — S.W.3d —, 2008 Ky. App. LEXIS 382 (Ky. Ct. App. 2008).

Research References and Practice Aids

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Designation of Issues.

This section requires that a party filing a complaint designate the portions of the record necessary to resolve the issues. In this case the plaintiff did not designate any portion of the record within ten (10) days of filing the complaint. The plaintiff maintained in its complaint that the commission’s dismissal of its application was unlawful and unreasonable, and further set forth its argument that the commission’s orders preceding the dismissal were inconsistent and contradictory. Accordingly, the designation of those orders would have been necessary in order for the trial court to resolve the issues raised. Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996).

Property owners satisfied the requirements of KRS 278.420 regarding the designation of the record when they attached to their complaint a copy of an order denying them a rehearing regarding the Kentucky Public Service Commission’s (PSC) dismissal for lack of jurisdiction of a proceeding on a communication company’s application for construction of a cellular tower; no evidentiary record had been developed before the PSC because the only issue decided was the jurisdictional one, and in that instance, the Circuit Court’s ruling that the order supplied by the owners was the only document necessary for review was not improper. Kentucky PSC v. Shadoan, 2008 Ky. App. LEXIS 382 (Ky. Ct. App. 2008).

Circuit court did not have jurisdiction to adjudicate aggrieved property owners’ action challenging the grant of utilities’ application for a certificate for construction of an electric power transmission line because the owners’ motion for enlargement of time to file the record was filed after the expiration of the ten-day period in KRS 278.420(2). Louisville Gas & Elec. Co. v. Hardin & Meade County Prop. Owners ex rel. Co-Location, 319 S.W.3d 397, 2010 Ky. LEXIS 209 ( Ky. 2010 ).

2.Excusable Neglect.

Excusable neglect under CR 6.02 equates with cause shown under KRS 278.420(2). Hardin & Meade County v. PSC of Ky., 2007 Ky. App. LEXIS 495 (Ky. Ct. App. Dec. 14, 2007).

Because the opposing parties did not suffer any prejudice due to the delay, judicial economy suffered no discernible prejudice as litigation was impeded far more by the time consumed in recourse to the appeal than it was in the delay in designation of a record that all parties agreed had to be reviewed, the reasons for the delay were neither willful nor contrived, and there was absolutely no evidence that the omission was a deliberate attempt to delay the litigation, the court should have allowed an enlargement of time to allow the property owners to designate the record in regard to their appeal of a Public Service Commission decision based on excusable neglect. Hardin & Meade County v. PSC of Ky., 2007 Ky. App. LEXIS 495 (Ky. Ct. App. Dec. 14, 2007).

Although the landowners only attached, as an appendix to the complaint and petition they filed for administrative review, the order denying their motion for rehearing filed with the commission, the inclusion of that order was sufficient to designate the record for review pursuant to KRS 278.420 . Whether the order denying the motion was properly granted was the only issue which the landowners wanted the trial court to review. Ky. PSC v. Shadoan, 2008 Ky. App. LEXIS 193 (Ky. Ct. App. June 20, 2008), sub. op., 2008 Ky. App. LEXIS 382 (Ky. Ct. App. Dec. 31, 2008).

3.Compliance Shown.

In a case where owners argued that issues relating to the siting and construction of a proposed cellular antenna tower lied with the Kentucky Public Service Commission (PSC), compliance with KRS 278.420(2) was established. While two owners did not file a separate document specifically entitled a “Designation of Record,” they did file in the record the actual document from the administrative proceedings disposing of the sole issue before the PSC; in so doing, they served notice of the only portion of the administrative record necessary and relevant to the issue on appeal. Ky. PSC v. Shadoan, 325 S.W.3d 360, 2010 Ky. LEXIS 278 ( Ky. 2010 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

1.Unreasonable or Unlawful.

Where the public service commission determined that city purchasing sister city’s water system was ready, willing, and able to continue providing adequate water service, such determination was neither unreasonable nor unlawful and was therefore not set aside by the court. Catlettsburg v. Public Service Com., 486 S.W.2d 62, 1972 Ky. LEXIS 110 ( Ky. 1972 ).

The term unreasonable can be applied to an administrative agency’s decision only when it is determined that the evidence presented leaves no room for difference of opinion among reasonable minds. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where a telephone company sought authority to increase its intrastate rates and two security and alarm system businesses objected on the basis that the telephone company had embarked on sizable construction projects without first applying for and receiving certificates of public convenience and necessity pursuant to KRS 278.020 , the application by the Utility Regulatory Commission of a 10% rule, under which a new construction project of less than 10% of the net investment of the utility would not be required to have a certificate, was not unreasonable or unlawful by clear and satisfactory evidence as required by this section to set aside the order. American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

2.Injunctive Relief.

A utility company is entitled to temporary injunctive relief from the order of the rate-making commission only if it establishes that there is a reasonable probability that it will succeed on final hearing in proving that the rate set by the commission is confiscatory, in the constitutional sense of being unjust and unreasonable. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

3.Scope of Review.

In a public utility regulatory case the complaining party must show by clear and convincing proof that the ruling was unlawful or unreasonable; hence, the scope of judicial review of administrative action is very limited. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where the Circuit Court reviewed the evidence and made its own findings, without demonstrating that the decision of the commission was unreasonable when measured by the clear and convincing standard, the circuit court applied an erroneous standard of review and the circuit judge’s de novo review of the record and the substitution of his own findings for those of the agency were improper. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

4.Question for Trier of Fact.

Where the circuit judge ruled that the energy regulatory commission was required to come forward with an affirmative case whenever the applicant made what might be termed a prima facie case before the agency, the Circuit Court committed reversible error because it thereby would shift the burden of proof from the applicant to the commission; the commission had no duty to refute evidence submitted to it by an applicant who had the burden of proof and the better rule to be employed by the Circuit Court in its review of the commission’s decision was that when all the evidence has been heard and reasonable men differ in the conclusion to be drawn, the question should be left to the trier of fact. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

5.Evidence.

6.— Sufficiency.

Without presenting to the trial court the orders which the plaintiff maintained were inconsistent, contradictory, unlawful and unreasonable, there existed no evidence, much less clear and satisfactory evidence, that the commission had exceeded its authority. Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996).

7.— Burden of Proof.

Attorney General showed by clear and satisfactory proof that the Public Service Commission lacked authority to grant a utility’s request for rate incentives and discounts in that the PSC’s order was unlawful as it violated the specific mandates of KRS 278.170 , and the Circuit Court erred in affirming the order. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Cited:

Lexington Tel. Co. v. Public Service Com., 311 Ky. 584 , 224 S.W.2d 423, 1949 Ky. LEXIS 1150 ( Ky. 1949 ), overruled, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ), overruled in part, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ); Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ); Public Service Com. v. Continental Tel. Co., 692 S.W.2d 794, 1985 Ky. LEXIS 240 ( Ky. 1985 ); Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996); Kentucky PSC v. Commonwealth Ex Rel. Stumbo, — S.W.3d —, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. 2008); PSC of Ky. v. Commonwealth, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Remand to Commission.

Refusal of judge to remand case on ground that motion, coming after the case was submitted for judgment, was too late is not an abuse of discretion. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

Where evidence before Public Service Commission fails to furnish any satisfactory basis for determining whether harmful duplication might result if certificate of convenience and necessity were issued court should remand case to Public Service Commission for a further hearing addressed to the question of duplication from the standpoint of an excessive investment in relation to efficiency and from the standpoint of inconvenience to the public generally and economic loss that might result from multiple sets of rights of ways and a cluttering of the land with poles and wires. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

Where a utility company had unsuccessfully applied to the energy regulatory commission for a rehearing, alleging that the new rates prescribed by the commission would produce an increase of only $3,571,260, rather than the intended increase of $7,020,366, it was proper for the Circuit Court to remand the matter to the commission for the purpose of entertaining further evidence on whether the prescribed rates would produce the intended results; the purpose of the remand was in keeping with this section in that it directed the commission to hear new evidence that could not have been obtained prior to the original hearing. Kentucky Power Co. v. Energy Regulatory Com., 623 S.W.2d 904, 1981 Ky. LEXIS 295 ( Ky. 1981 ).

A water district had the right to a meaningful opportunity to be heard as to the issue of the allowability of depreciation expense on contributed property, and nothing contained in the provisions of KRS 278.410 or this section changed that conclusion; accordingly, the Circuit Court did not err in remanding the case back to the Public Service Commission in order that both parties might introduce evidence on that issue. Public Service Com. v. Warren County Water Dist., 642 S.W.2d 594, 1982 Ky. App. LEXIS 266 (Ky. Ct. App. 1982).

2.Appealability of Court Order.

Where the trial court does not order a new trial on newly discovered evidence, but the order dictates a different trial on new evidence in complete disregard of the legislative mandate for judicial review, the order is appealable and is erroneous. Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

3.Evidence.

The trial court is to hear and decide the action only on the transcript of evidence heard by the commission. Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

This section merely establishes that there shall be no de novo trial before the Circuit Court of matters heard by the commission, and it does not prohibit a remand for the taking of additional evidence by the Public Service Commission. Utility Regulatory Com. v. Kentucky Water Service Co., 642 S.W.2d 591, 1982 Ky. App. LEXIS 265 (Ky. Ct. App. 1982).

Cited:

Middleton’s Adm’x v. Middleton, 297 Ky. 109 , 179 S.W.2d 227, 1944 Ky. LEXIS 692 ( Ky. 1944 ); Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

1.Payment at End of Year on Demand.

Utility companies must pay or credit bill of customer with interest at the end of each year from date of deposit, providing demand is made by the customer for payment or credit. In the absence of such demand interest continues to run, but the company may voluntarily credit the bill with interest. Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 ( Ky. 1934 ).

2.Criminal Liability.

No criminal liability is incurred by the company unless it refuses to pay or credit the interest at the end of the year on demand therefor made by the customer. Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 ( Ky. 1934 ).

Opinions of Attorney General.

This section would apply to both privately and municipally owned utilities. OAG 60-432 .

Although there is no specific statute requiring municipally owned utilities to refund service deposits, it would appear that such deposits must be refunded with interest under the general principle cited in Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 (1934), provided it is not necessary to use the deposits to cover delinquent accounts at the time service is discontinued, and this would apply to deposits required by a city’s municipal utilities regardless of the length of time with which the person did business with the utility. OAG 78-449 ; 80-25.

This section, requiring the public utility to pay interest on deposits required of patrons, is not applicable to municipally owned utilities under the terms of KRS 278.010(3). OAG 78-449 ; 80-25.

The making of a deposit by a customer of a municipal utility on which a fixed rate of interest must be paid creates a debtor and creditor relationship between the utility and the customer-depositor and in absence of an express provision restricting the utility’s use of the funds so deposited, the utility may use the money to suit its own convenience although the funds deposited take the form of a demand loan at all times. OAG 79-418 .

This section requiring the public utility to pay interest on deposits required of patrons is not applicable to municipally owned utilities under the terms of KRS 278.010(3). OAG 79-418 .

While a municipal utility may require a reasonable and nondiscriminatory service deposit from its customers, it must pay interest on the deposit and must refund the deposit with interest when the customer ceases to be a patron of the utility, when so requested by the customer, provided it is not necessary to use the deposit to cover a delinquent account. OAG 79-418 .

Absent some specific provision in an agreement between the city’s utility plant board and its customers that security deposits shall be refunded to the customers prior to discontinuation of service, such deposits need not be refunded prior to discontinuation of service unless customers of the utility plant board can make other suitable arrangements about securing their bills. OAG 80-25 .

While the utility is permitted to require a deposit from its customers for its protection, it is manifestly clear that, for the time period the company holds that deposit, the customer must be compensated by way of interest, the deposit representing a debt. OAG 83-224 .

Since this section requires that six percent (6%) interest be paid annually, interest would be accrued on an annual basis in the event that this annual interest is not remitted to the customer, and assuming the deposit is kept longer than one (1) year, each yearly accrual of interest would become the property of the customer, in addition to the deposit, and a requirement would arise that interest accrued to that new debt as well as to the deposit itself so that compounding of interest would occur. OAG 83-224 .

1.Duties of Pipeline Company.

Neither this section declaring a pipeline company to be a common carrier, nor the common law, imposes upon a pipeline company the duty of a supplier or wholesaler and, such duty, if it exists, must be found in KRS 278.010 to 278.450 governing public utilities generally and providing for their regulation by the public service commission. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

2.Refusal to Accept Oil for Transportation.

Pipeline company operating as a pipeline is bound to accept oil for transportation to the extent of its reasonable facilities and to deliver it upon the order of the consignor unless prevented by court order, and may be subject to damages or perhaps a criminal penalty for refusal. Cumberland Pipe Line Co. v. Commonwealth, 258 Ky. 90 , 79 S.W.2d 366, 1934 Ky. LEXIS 575 ( Ky. 1934 ).

3.Public Consumption.

This section and KRS 278.490 apply only to companies engaged in the transportation of gas “for public consumption” — that is, for ultimate use by Kentucky customers; thus, those regulatory statutes did not apply to a gas producer which sold its gas only through interstate pipelines, which it owned, to another interstate pipeline company. In re Langford, 32 B.R. 746, 1982 Bankr. LEXIS 5436 (Bankr. W.D. Ky. 1982 ).

4.Pipeline Owner Not Subject to Strict Liability.

Since the transmission of natural gas through pipelines is a public service as provided by this section, defendant owner of natural gas pipeline could not be held to strict liability in action for injuries resulting from plaintiff’s hitting above ground natural gas pipeline while operating a bulldozer as he attempted to extinguish a forest fire. Workman v. Columbia Natural Resources, 864 F. Supp. 638, 1994 U.S. Dist. LEXIS 15047 (E.D. Ky. 1994 ).

Cited:

Texas Co. v. Commonwealth, 303 Ky. 590 , 198 S.W.2d 316, 1946 Ky. LEXIS 906 ( Ky. 1946 ).

1.Liability of Carrier.

Law providing that pipeline companies could transport and deliver oil for persons in possession and not be liable to the true owner thereof except when served with a court order in the manner of summons in a civil action changed the common-law rule of liability relating to acceptance and redelivery of oil by pipeline companies and did not affect liability for oil transported before the law was passed. Hall v. Cumberland Pipe Line Co., 193 Ky. 728 , 237 S.W. 405, 1922 Ky. LEXIS 69 ( Ky. 1922 ).

1.Bankruptcy.

Trustee in bankruptcy of pipeline company cannot be compelled by property owner to furnish oil and gas service as required by this section without the consent of the bankruptcy court. Price v. Williamson, 305 S.W.2d 276, 1956 Ky. LEXIS 11 ( Ky. 1956 ).

2.Quality of Gas.

Where gas companies which had been furnishing gas to persons entitled thereto under this section sought to discontinue gas service because the gas in the gathering pipelines contained a harmful impurity, the commission had no authority to allow discontinuance of service since the commission was without power to regulate or control the quality of gas furnished. Public Service Com. v. Kentucky West Virginia Gas Co., 531 S.W.2d 491, 1975 Ky. LEXIS 36 ( Ky. 1975 ).

Although the commission has no authority to regulate the quality of gas furnished pursuant to this section, a sensible interpretation of the statute would limit its application to gas that is commercially usable and not unreasonably dangerous to the health and safety of the user. Public Service Com. v. Kentucky West Virginia Gas Co., 531 S.W.2d 491, 1975 Ky. LEXIS 36 ( Ky. 1975 ).

3.Regulatory Responsibility.

The Federal Natural Gas Act assigns to the Federal Energy Regulatory Commission exclusive regulatory responsibility for transportation of an interstate pipeline company’s natural gas from wellheads through gathering lines; that responsibility includes the power to prohibit deliveries of natural gas for which no certificate of public convenience and necessity has been issued. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

4.Diversion of Interstate Gas.

The states may not, without federal authorization, divert from the interstate market supplies of natural gas for the use of state residents only. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

5.Federal Law Controls.

Inasmuch as this section seeks to reserve a supply of natural gas to certain state residents, it, independent of federal regulatory control, denies to consumers outside of Kentucky and to Kentuckians whose real estate lies beyond one-half (1/2) mile of wellheads and gathering lines the equal access that they otherwise would enjoy to Kentucky natural gas; and if pursued by many or all producing states in times of extraordinary scarcity, the Kentucky policy would impede, if not prohibit altogether, accomplishment of the congressional desire to provide an adequate supply of natural gas for the entire nation; therefore, this section is in conflict with the federal regulatory scheme and is unenforceable. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

Transportation through gathering lines and sales to local residents by an interstate pipeline company under this section are subject to federal jurisdiction. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

1.Construction.

This section imposes upon the company only the duty of a carrier or transporter and not the duty of a wholesaler or supplier. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

2.Public Consumption.

KRS 278.470 and this section apply only to companies engaged in the transportation of gas “for public consumption” — that is, for ultimate use by Kentucky customers; thus, those regulatory statutes did not apply to a gas producer which sold its gas only through interstate pipelines, which it owned, to another interstate pipeline company. In re Langford, 32 B.R. 746, 1982 Bankr. LEXIS 5436 (Bankr. W.D. Ky. 1982 ).

1.Necessity.

The “necessity” which must exist in order that a natural gas company may condemn land for the laying of pipe is a reasonable and practicable necessity as opposed to absolute necessity at the one extreme and mere convenience of location at the other. Petroleum Exploration v. Hensley, 308 Ky. 103 , 213 S.W.2d 262, 1948 Ky. LEXIS 850 ( Ky. 1948 ).

2.Ingress and Egress.

Instructions to jury to assess damages for probable injury in the event an emergency should arise which would necessitate condemnor using land as a means of ingress and egress to its right-of-way was erroneous since the happening of such an emergency would be so remote that it would be impossible for the jury, within reason, either to anticipate its happening or to determine in advance the extent of the damage in case it should occur. Rogers v. Tennessee Gas & Transmission Co., 304 Ky. 863 , 202 S.W.2d 737, 1947 Ky. LEXIS 750 ( Ky. 1947 ) (decided under prior law).

The right to traverse and enter the land of another at any point and at any time is an infringement on the dominion; it is a right which might be called an estate carved out of a fee and such rights are appurtenant to each and every portion of a farm and no matter into how many tracts it may be divided and sold, the burdens imposed will run with the land of each and every tract. Tennessee Gas Transmission Co. v. Igo, 314 Ky. 146 , 234 S.W.2d 149, 1950 Ky. LEXIS 1006 ( Ky. 1950 ).

3.Condemnor’s Right to Possession.

Condemnor’s right to enter into possession of property upon the payment of the compensation fixed by the commissioners under KRS 416.270 (now repealed) does not violate Const., §§ 13 and 242. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

4.Valuation.

Opinions as to values without facts to support them, or based on facts that were more or less speculative or remote, as well as somewhat fanciful, were of little value, and could have been in a large measure ignored. Calor Oil & Gas Co. v. Wither's Adm'r, 141 Ky. 489 , 133 S.W. 210, 1911 Ky. LEXIS 27 ( Ky. 1911 ). See Cincinnati Gas Transp. Co. v. Cartee, 149 Ky. 89 , 147 S.W. 925, 1912 Ky. LEXIS 576 ( Ky. 1912 ); Warfield Natural Gas Co. v. Laferty, 232 Ky. 248 , 22 S.W.2d 611, 1929 Ky. LEXIS 433 ( Ky. 1929 ); Warfield Natural Gas Co. v. Shepherd, 233 Ky. 254 , 25 S.W.2d 397, 1930 Ky. LEXIS 540 ( Ky. 1930 ) (decided under prior law).

Where evidence showed condemnor had been required to dig ditches for drainage purposes in the careful maintenance of a 24-inch pipeline right-of-way and in so doing had cast surface waters unnaturally upon adjacent property it was sufficient for jury to anticipate the same result would occur in the ditching and draining of the right-of-way and since such incidental damages reasonably could have been anticipated and the injuries resulting therefrom would have been continuous and permanent it was proper for the court to instruct the jury on this element and allow one recovery for all. Rogers v. Tennessee Gas & Transmission Co., 304 Ky. 863 , 202 S.W.2d 737, 1947 Ky. LEXIS 750 ( Ky. 1947 ) (decided under prior law).

The basic measure of damages in a condemnation proceeding must of necessity be anchored to the fair or reasonable market value of the land being taken, and if no lease is involved, the proper measure of damages is the difference in the fair market value of the land before and after the taking. Gulf Interstate Gas Co. v. Garvin, 368 S.W.2d 309, 1963 Ky. LEXIS 40 ( Ky. 1963 ).

Where a gas company sought to condemn a pipeline easement through land containing a vein of fire clay, owners of a leasehold interest in the land will be entitled to damages to the extent that the lease decreased the market value of the land prior to the taking, as this decrease will establish the percentage of ownership interest of the lessees in the land. Gulf Interstate Gas Co. v. Garvin, 368 S.W.2d 309, 1963 Ky. LEXIS 40 ( Ky. 1963 ).

Where the petition to condemn an easement for gas pipeline was over a 129-acre tract, and the landowners did not by pleading seek to include in the assessment of damages any part of their other land and made no claim of entity or unity of the tracts except in their instructions to the jury which were refused, damage to land other than the 129-acres could not be considered in determining incidental damages to remainder of tract. Central Kentucky Natural Gas Co. v. Long, 312 S.W.2d 894, 1958 Ky. LEXIS 242 ( Ky. 1958 ).

Evidence of the valuation placed on their property by the landowners for tax purposes was an important factor which the jury should have been permitted to consider in arriving at a proper verdict consequently the exclusion of it was prejudicial. Texas Gas Transmission Corp. v. Rose, 365 S.W.2d 332, 1963 Ky. LEXIS 220 ( Ky. 1963 ).

Easement was properly granted to a gathering pipeline operator because there was no requirement that a private company obtain an appraisal; therefore, there was no error in making a cash offer based upon an amount offered for the same easements previously. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

5.Court of Appeals.

Court of Appeals will not exercise original jurisdiction in the absence of a showing that an inferior court is acting without jurisdiction, or is acting within its jurisdiction but erroneously and in such a manner that great and irreparable injury will follow therefrom and the petitioner is without adequate remedy. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

6.Types of Pipelines.

Easement was properly granted to a gathering pipeline operator across property because the definition of a public service under KRS 278.502 was met; despite the regulatory treatment of different types of pipelines, there was no authority to extend the difference to KRS 278.502 . Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

7.Good Faith.

Easement was properly granted to a gathering pipeline operator because the operator engaged in good faith negotiations prior to filing a condemnation petition; the proper corporate entity conducted the negotiations, and good faith negotiations were undertaken based on the written correspondence. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

8.Notice of Public Right to Use.

Owner of pipeline had no right of condemnation without giving notice that public generally would have the right to the use of the pipeline. Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ) (decided under prior law).

9.Rights of Lessee.

A lease giving an exclusive right to cross lands by pipelines being against public policy, the holder of the right was not entitled to compensation for the invasion of its exclusive right in condemnation proceedings by another of a similar right of way across the same lands. Calor Oil & Gas Co. v. Franzell, 128 Ky. 715 , 109 S.W. 328, 33 Ky. L. Rptr. 98 , 1908 Ky. LEXIS 95 ( Ky. 1908 ) (decided under prior law).

10.Franchise Tax.

Although company had never exercised power of eminent domain it was liable for franchise tax under KRS 136.120 where it conveyed gas or oil through pipeline and sold it to companies who resold to consumers. Martin v. Producers Pipe Line Co., 113 F.2d 817, 1940 U.S. App. LEXIS 3466 (6th Cir. 1940), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (1940), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (1940) (decided under prior law).

Company conveying gas or oil through pipeline and selling to companies reselling to consumers performed public service and had power of eminent domain and was subject to franchise tax imposed by KRS 136.120 . State Tax Com. v. Petroleum Exploration, 253 Ky. 119 , 68 S.W.2d 777, 1933 Ky. LEXIS 977 ( Ky. 1933 ) (decided under prior law).

11.Eminent Domain Authority.

Pipeline company lacked the power to invoke eminent domain under Ky. Rev. Stat. Ann. § 278.502 as the legislature only intended to delegate eminent domain power to companies regulated by the Public Service Commission, and the natural gas liquids were not reaching Kentucky consumers. Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain Eminent Domain, Inc., 478 S.W.3d 386, 2015 Ky. App. LEXIS 73 (Ky. Ct. App. 2015).

Cited:

Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ); Gulf Interstate Gas Co. v. Garvin, 303 S.W.2d 260, 1957 Ky. LEXIS 236 ( Ky. 1957 ); Central Kentucky Natural Gas Co. v. Long, 312 S.W.2d 894, 1958 Ky. LEXIS 242 ( Ky. 1958 ); Texas Gas Transmission Corp. v. Rose, 365 S.W.2d 332, 1963 Ky. LEXIS 220 ( Ky. 1963 ).

Opinions of Attorney General.

Oil and gas companies cannot condemn public property. OAG 79-346 .

Research References and Practice Aids

Cross-References.

Pipeline excavations crossing public road, duty of pipeline company concerning, KRS 179.260 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

1.Constitutionality.

KRS 278.509 is not an unconstitutional violation of the title and single-subject provisions of Ky. Const. § 51; KRS 278.509 is sufficiently embraced within the term “gas delivery systems” to comply with Ky. Const., § 51, and although no other provision in the bill containing the present version KRS 278.509, HB 440, related to utility rates, a fraud was not committed, and the General Assembly did not title the Act to deceive the public. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008).

2.Authority of Commission.

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008).

The Public Service Commission has authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders after the enactment of KRS 278.509 ; although the 2005 amendment to KRS 278.509 did not apply to AMRP Riders approved prior to its effective date, that did not preclude the recovery of those same costs through a general rate increase. “Costs” as used in KRS 278.509 included the recovery of the company’s return on investment, and a return on investment was a “cost” recognized in the common usage of the term and in the statutory scheme applicable to the regulation of public utilities. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008).

Kentucky Public Service Commission had plenary authority to allow a utility to adjust its rates by imposing a surcharge or accelerated main replacement program rider so long as the rates established by the utility were fair, just, and reasonable and even in the absence of specific statutory authority provided under KRS 278.509 . Ky. PSC v. Commonwealth ex rel. Conway, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

1.Transmission of Other’s Messages.

When lines of different telephone companies are connected, service must be accepted over lines as existing at time of connection. Railroad Com. v. Northern Kentucky Tel. Co., 236 Ky. 747 , 33 S.W.2d 676, 1930 Ky. LEXIS 820 ( Ky. 1930 ).

Telephone company holds its property subject to constitutional and statutory rights of other telephone companies to transmit messages over its lines. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

2.Connection with Another Company.

When in good faith telephone company requests a physical connection with another telephone company, the commission cannot refuse to order such connection. Commission may determine who shall pay the cost of connection and must work out regulations controlling tolls and other details after connection is made. Railroad Com. v. Northern Kentucky Tel. Co., 236 Ky. 747 , 33 S.W.2d 676, 1930 Ky. LEXIS 820 ( Ky. 1930 ).

Commission must work out details of connections between companies without destroying property rights of either company. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

Telephone company was entitled to make physical connection with lines of another telephone company, though there was no telephone exchange at point of connection. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

Research References and Practice Aids

Cross-References.

Telephone exchanges to receive and transmit messages from exchanges of other telephone companies in other cities, Const., § 199.

1.Mandamus to Compel Connection.

Mandamus is proper remedy to compel commission to require one telephone company to permit connection of its lines with those of another company. Railroad Com. v. Northern Kentucky Tel. Co., 236 Ky. 747 , 33 S.W.2d 676, 1930 Ky. LEXIS 820 ( Ky. 1930 ); Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

1.Application.

This section is not applicable to cities and mandamus will not lie to compel city to offer telephone franchise for sale. Bastin Tel. Co. v. Davidson, 176 Ky. 23 , 195 S.W. 148, 1917 Ky. LEXIS 13 ( Ky. 1917 ).

2.Erection of Poles Along County Roads.

Consent of fiscal court must be obtained before telephone company can place poles along county road. Bevis v. Vanceburg Tel. Co., 121 Ky. 177 , 89 S.W. 126, 28 Ky. L. Rptr. 142 , 1905 Ky. LEXIS 190 ( Ky. 1905 ).

Fiscal court may provide how and in what manner telephone poles and wires shall be erected and maintained along county road. Christian-Todd Tel. Co. v. Commonwealth, 156 Ky. 557 , 161 S.W. 543, 1913 Ky. LEXIS 477 ( Ky. 1913 ).

3.Sale of Franchise by Fiscal Court.

Telephone company may not occupy county roads without obtaining a franchise from fiscal court. But if the fiscal court arbitrarily refuses to offer such franchise for sale it may be ordered to do so. Christian-Todd Tel. Co. v. Commonwealth, 156 Ky. 557 , 161 S.W. 543, 1913 Ky. LEXIS 477 ( Ky. 1913 ).

Fiscal court cannot refuse sale of franchise to construct telephone line along highway on ground that existing system is sufficient, but may refuse sale if, in reasonable exercise of its discretion, telephone line would interfere with travel. Northern Kentucky Mut. Tel. Co. v. Bracken County, 220 Ky. 297 , 295 S.W. 146, 1927 Ky. LEXIS 523 ( Ky. 1927 ).

Mandamus will lie to compel fiscal court to sell franchise where fiscal court has refused sale of franchise on ground that existing telephone system is sufficient. Northern Kentucky Mut. Tel. Co. v. Bracken County, 220 Ky. 297 , 295 S.W. 146, 1927 Ky. LEXIS 523 ( Ky. 1927 ).

4.Condemnation of Private Property.

Petition for condemnation should have set out in addition to facts stated, how much land was to be used in the construction, maintenance and repair of its line, and for ingress and egress to examine, repair and maintain the line so that both parties could know their rights and jury could intelligently assess the damages. Postal Tel. Cable Co. v. Patton, 153 Ky. 187 , 154 S.W. 1073, 1913 Ky. LEXIS 799 ( Ky. 1913 ). See Louisville & N. R. Co. v. Western U. Tel. Co., 207 F. 1, 1913 U.S. App. LEXIS 1597 (6th Cir. Ky. 1913 ); Louisville & N. R. Co. v. Lang, 160 Ky. 702 , 170 S.W. 2, 1914 Ky. LEXIS 512 ( Ky. 1914 ).

Telecommunications company did not have the power to condemn the entirety of an owner’s property, nor to condemn the owner’s property for the purpose of expanding its “Point of Presence” facility, which was not a “telephone line” for purposes of KRS 278.540(2); the telecommunications company abused its discretion in pursuing a condemnation action against the owner’s entire property, and a trial court erred in entering summary judgment in favor of the telecommunications company on the owner’s counterclaim for abuse of process. Leggett v. Sprint Communs. Co., L.P., 2005 Ky. App. LEXIS 255 (Ky. Ct. App. Dec. 2, 2005).

Where a telephone company instituted a condemnation proceeding against a landowner to acquire the landowner’s entire half-acre lot and where the landowner filed a counterclaim alleging abuse of process, the trial court erred in granting summary judgment in favor of the telephone company on the landowner’s counterclaim because KRS 278.540(2) did not vest the telephone company with the authority to take for its permanent use all of the landowners’ property but merely authorized a telephone company to condemn a right of way when it was unable to purchase a right of way for its telephone lines across property. A right of way was merely the right to pass through the property of another; thus, it did not permit the telephone company to take the entire property in perpetuity for the purpose of constructing a building thereon. Sprint Communs. Co., L.P. v. Leggett, 307 S.W.3d 109, 2010 Ky. LEXIS 64 ( Ky. 2010 ).

5.— Foreign Companies.

Foreign telephone and telegraph companies, which have complied with constitution and qualified themselves to do business in the state, need not domesticate themselves, as railroads are required to do by KRS 277.020 (now repealed), in order to condemn right of way over private property. Potter v. Gardner, 222 Ky. 487 , 1 S.W.2d 537, 1927 Ky. LEXIS 946 ( Ky. 1927 ).

6.Injunction Pending Condemnation.

Where telegraph company has operated its lines over railroad right of way under contract which has expired, court of equity may enjoin railroad from interfering with such operation pending proceedings instituted by telegraph company to condemn right of way for its lines. Louisville & N. R. Co. v. Western U. Tel. Co., 207 F. 1, 1913 U.S. App. LEXIS 1597 (6th Cir. Ky. 1913 ).

7.Additional Servitudes.