Abney v. Barnett

4 Ky. 557 | Ky. Ct. App. | 1809

OPINION of the Court, by

Ch. J. Bibb.

The order of court appointing viewers of the proposed way is defective in not stating any one oi the causes and conveniences of travelling, which, by the statute, are pointed, out as sufficient inducements for the jurisdiction of the court to attach. Some public convenience must be proposed, either for travelling to the county court house, a public warehouse, landing, ferry, mill, lead or iron works, or the seat of government; otherwise the justices of the county court are not authorised ^(a) to appoint viewers, or to act upon the subject. No man has the right of demanding, or the court of granting a road across another’s land for mere private convenience or emolument. Therefore it is that the conveniences and inconveniences to the public, as well as to individuals, are required to be attended to by the viewers, and stated in their report. This requisition has not been attended to in the report made in the case before us, and therefore the court ought not to have acted upon that report as if the viewers had reported the way convenient and interesting to the public. They should have dismissed the application, had the report amended, or appointed other viewers, provided their first order had been proper. The court are to judge, “ upon the return of the said viewers,” whether the road applied for will be convenient. The viewers are in nature of a general inquisition concerning the public conveniences and inconveniences, as well as of individual interest and hardship. The court are to judge upon the return of this inquisition ; which is to be taken upon oath of the viewers. Private, inofficial, out-of-doors information will not do. When the judgment of the court has been pronounced Upon the report, then the writ of ad- quod dam-num is an order for an inquisition concerning the particular damage of the party praying it, by loss of the use. of his land, and by additional fencing. It seems the inquest taken has omitted to state or to enquire the damage by additional fencing, as enjoined by the statute; and therefore the exception taken to it in the court be-Ipw ought to have been allowed.

It is therefore considered by the court that the said inquisition, report cf viewers, and order of the county court for appointing viewers, be quashed, set aside and! reversed, at the costs of the applicant..

(a) Lawless vs. Ress ante 496.