108 Ky. 357 | Ky. Ct. App. | 1900
Opinion oe ti-ie court by
Reversing.
The appellants are the owners of a gristmill on the east fork of Little river, in Christian county, and as such are the owners of the right to maintain a dam across ■said stream, acquired by condemnation proceedings had in the year 1846. The right thus given to erect and maintain the dam was for the purpose of using the water power thus afforded by the dam in running the mill. The ap-pellee is a charitable institution, owned and conducted by the State, for the care and treatment -of its insane citizens. The buildings and grounds of appellee are situated some three-fourths of a mile from Little river1, and it owns no land on the river except one acre acquired by its commissioners by purchase, lying on both sides of the river, and including the river within the boundary, as it is not a navigable stream. On this acre on the river, appellee has
The argument of counsel on this question is quite strong and persuasive, but the question is not an open one in this State. In the case of Herr v. Asylum, 97 Ky. 458, [30 S. W. 971, [28 L. R. A. 394,] this identical question was fully considered, and there determined adversely to ap-pellee’s contention. The commissioners of the -asylum are created a corporate body, with power to sue and be sued, without qualification as to the causes of action. This must be.held1 to be legislative consent. , *
Appellee filed answer to the petition, admitting the taking of the water as above stated, but alleged that the
We are of opinion that the demurrer to the first paragraph of the answer, pleading that appellee was a riparian owner, and as such had a right to use all water necessary for domestic purposes, should have been sustained. By the admitted facts, appellee is not a riparian owner on the stream. Its institution is three-quarters of a mile from
We are also of opinion that the demurrer to the second paragraph of the answer should have been sustained in so far as the facts pleaded are intended to bar appellants’ right to recover anything by way of damage. The facts pleaded in this second paragraph, and as shown to exist by the exhibit filed with the reply, present a defense to any 'recovery for damage done to the mill prior to the deed from Huffman to appellants. This deed, instead of showing a rescission of the contract, shows a purchase by appellants from Huffman. The consideration recited in the deed from Huffman to appellants is the purchase-money notes given, “and in further consideration of the •said parties of the second párt surrendering to said Huffman some unsecured notes which they hold against him.” This shows that appellants paid more for the mill property than they sold it for. "But this fact will not bar a recovery by appellants for tne actual damage done to the mill property by reason of diversion of the water from the stream, if such there be, after they became the owners of the mill, and up to the filing of the petition herein. The reply presented no facts in avoidance of the second paragraph of the answer. The pleading relies on the exhibit filed therewith, and these show that there was no rescission, but a purchase outright.
In view of a reversal, and a trial on the question of damages, we deem it not out of place to say that there can be no recovery for future or permanent damages to the mill property; for the reason that, depending on the seasons