117 Ky. 674 | Ky. Ct. App. | 1904
Opinion or the court by
Reversing.
Nelson county by vote in 1897 adopted the provisions of the statute known as the “Free Turnpike Act” (section 4748b, Ky. St., 1908). In the following March the owners of the Bardstown & Louisville' Turnpike road and Nelson county (the latter acting through its fiscal court) entered into a contract by which the county was to acquire that
Inasmuch as appellant’s petition sets out the consideration of the agreement sued on, to it, the transfer of the 13 miles of road to the county by the company, the plea of no consideration simply raises the validity of the vote under 'jvh.ich the contract was entered into. As those matters were fully set forth in the petition, their sufficiency was' as well presented by the demurrer to the petition as by the plea of no consideration. Under the pleadings as formed, this plea
Every writing evidencing an indebtedness imports a consideration, under our statute (section 470, Ky. St., 1903). Andrews v. Hayden’s Adm’r, 88 Ky., 455, 11 S. W., 428.
A petition upon such writing, where the consideration is not named in it, need not aver the consideration. If the defendant plead no consideration, he would have the burden of proof. But where the writing states its consideration, and the petition also declares upon it, if denied, the burden of proving it is upon the plaintiff. And that is so whether the form of the denial is a traverse or an affirmative denial. The trial court should have awarded the burden in this case to appellant.
When the proposition was submitted to the voters of Nelson county whether they would adopt free turnpike and gravel roads, there was also submitted the question whether they were in favor of issuing bonds to pay for the roads. The first proposition received 1,370 votes in the affirmative, and 563 against it. But on the second proposition there were cast only 826 votes'in favor of it, and 612 against it. Prom this it is argued that no authority was given to incur an indebtedness to be paid out of the revenues of future years; that section 157 of the Constitution prohibits the incurring of a liability by a county beyond the revenues of the year in which it is incurred, unless the proposition is submitted to a vote of the people of the county, and receives in its favor two-thirds of the votes cast on that question.
The proposition submitted to the turnpike company by the fiscal court, which was in writing, was accepted by the company, but it added certain conditions to its acceptance. The county, by a written order, rejected the conditions. It is now agreed that a proposition can not- be accepted conditionally, so as to impose them upon the other party, and that such an acceptance is no acceptance. Admitting this to be so, yet, in this matter when the county rejected the conditions imposed by the company, the latter turned over to the county the possession of the road under the original proposition, which was an abandonment of the condition which it had sought to impose, and left the original proposition accepted, without other conditions than were contained in it.
Section 4732, Ky. St., 1903, provides: “When any turnpike company abandons its road and ceasesi to charge toll thereon, it shall be the duty of the fiscal court in the county in which any such road lies to take charge and control of same, and keep it in a safe and proper condition for public travel, and alter or discontinue same as other public roads The failure on the part of any turnpike company for the period of four months to -keep its road in a condition safe for public travel, and their failure to charge toll thereon for
On the trial of the case a number of witnesses introduced by the county testified that, in their opinion, the road was valueless. On cross examination they gave as their reason for this that tollgate raiders — a species of! felons who in the night time went armed and in bands, destroying the tollgates and terrorizing the gates keepers — had by their action made the property so undesirable as a marketable property that it could not be sold. Therefore they thought it had no market value. Again some thought, as the people of the county had voted for free turnpikes, that meant that all toll roads must be relinquished, and that destroyed their future value. Others yet suggested that the effect of these matters, and of the free-turnpike sentiment, took away all market value from the stock of the turnpike companies; that investors would no longer buy it. The only value of that class of evidence was to show that the witnesses giving it were utterly incompetent to judge of the matter about which they were attempting to testify — the actual value of the turnpike road. It was the'duty of the county to have protected the gates and property of the road company from the depredations of the marauders. If it failed to do it, and if their strength overcame that of the owners temporarily, that fact should not, and in law does not, detract in the least from the actual value of the properties, in the condemnation proceedings by the county. Nor has the market value of the road anything to do with the
Nor did the market value of the stock enter into the question'. The stock was not being condemned. The company may' have been over capitalized, or may have paid unnecessarily large salaries to useless officers, all of which would have affected the market value of this stock, and yet have had no just effect whatever upon the value of its road. While the value of the road would likely have affected the value of the stock, the market value of the stock could not possibly have affected the actual value of the road, except to show its dividend paying capacity.
The statute governing condemnation proceedings in the county court, as to how the value of the road was to be ascertained,' should have been applied in the circuit court. Section 13 of the act regulates that. These are declared to be probative evidence: (1) A view of the road; (2) the books and other evidence showing receipts and expenditures on the part of the road to be sold,, and showing net earnings for past six years; and (3) “any other evidence conducing to show the value of the property sought to be taken.” The commissioners are then required, from all that evidence, to “award to the owner or owners thereof, the actual value
In this connection it is well to notice the instructions of the court guiding the jury to a verdict upon the value of this property. The instructions given were as follows: Instruction “r“The court instructs the jury that they should find for the plaintiff the actual value, from the evidence, of its road in controversy — being! that portion of plaintiff’s road between Bardstown and the Spencer county line, including bridges, in the condition in which it was on March 7, 1898 — unless they shall believe from the evidence said property was of no value on said date.”
Instruction “s:” “By ‘actual value’ is meant such price or value as could have been obtained at a fair, voluntary sale.”
Instruction “t“If they believe from the evidence that the property in controversy was of no value March 7, 1898, they should find for the defendant.”
Instruction “u:” “The vote in Nelson county November 7, 1897, only authorized said county to obtain the turnpike
Instruction “M:” “Tbe court instructs tbe jury that they are not authorized to consider any failure or cessation of plaintiff to collect tolls at its gates, which they may believe from the evidence was caused by the acts of mobs and tollgate raiders, prior to March 7, 1898, as an abandonment of its road or franchise privileges.”
Instruction “F:” “The court instructs the jury that the plaintiff was not required to expend any other portion of its tolls and revenues in the repair and maintenance of its road than was required to keep its road and bridges in a fit condition for public travel, and, if the receipts of the road were more than sufficient to so keep it, it was the duty of plaintiff company to declare dividends, and pay the • surplus earnings and profits each year to the stockholders.” There should have been omitted from the first instruction the last sentence — “unless they shall believe from the evidence said property was of no value on said date.”
Instruction “s” and instruction “t” should have been omitted; nor do we see any occasion for instruction “u.”
It is true, certain witnesses, basing their opinions upon erroneous bases, as had been shown, stated that the road was valueless. But that could not have been so in this case. It was a manifest fact from the record, and one of which the court was bound to take notice, that property of this character and quantity had some value. It had for many years — certainly for the six years previous to its being taken —paid dividends to its stockholders on a basis of six per cent, per annum on the valuation of about $23,000 for the 13 miles of road in suit. The right of way was 60 feet wide. The road was built about 1832. • The grade was
The judgment is reversed, and cause remanded for a new trial consistent herewith. The judgment of the circuit court 'should add 6 per cent, per annum from March 7, 1898, to whatever sum is found and adjudged to be the value of the road, for the use of the road under the contract since that date.