Bradbury v. Walton

94 Ky. 163 | Ky. Ct. App. | 1893

JUDGE PRYOR

delivered the opinion of the court.

Tlie contention, by tlie appellant in this case is, that the statute authorizing the county court to close lateral roads, or what is known as ordinary highways, when running within a certain distance of a turnpike road (one mile), is unconstitutional. It appears from tlie petition filed, in which it is alleged that the closing of a lateral road by the defendants was an interference with the right of the appellant to pass from one part of his land to another, that the road had been ordered closed by the county court of Mason in a proceeding under chapter 110 of the General Statutes, to which the appellant was a party, and that he appeared in that court and resisted the motion. It seems to us that proceeding must bar the recovery of the appellant in this case. The appellee closed the highway on his own land, and by virtue of the judgment of the county court, and until that order is reversed it is binding on both the public and the appellant. It is argued, however, that the act is unconstitutional, and, if so, the judgment of the county court is a mere nullity; and if this view of the question was even conceded, with the broad and almost unlimited power of county courts over the highways of the State within their jurisdiction, it must be held that a proceeding to close, alter or discontinue a public road, with the party complaining a party to that proceeding, and a judgment entered, such a judgment must be deemed conclusive so long as it remains in force. The appellee closed the road on his own land, and therefore no trespass was committed by an entry on appellant’s land, and unless the latter had some right of property in this easement, not only on his own land, but on the land of the appellee, no action can be maintained by reason of the wrong complained of.

The public highways of the State, known as county roads, are opened and maintained for the public, and not for mere individual use, and whenever it may be deemed proper to close, alter or discontinue a county road the power is given to the county court to make such changes as may be conducive to the public welfare, and the right to close a highway that affects the travel on a turnpike is expressly given the county court, to be exercised only when the public good requires it, and of this the county court must be the exclusive judge, and its action only subject to review by some higher tribunal. It was to encourage the construction of better and more permanent roads for the convienience of trade and travel, and to prevent .the avoidance of turnpike gates, that the statute was enacted, and in such cases mere private convenience has been subordinated to the public good.

■ A private citizen has no right of property in a public road, although it passes over his own land, unless he owns the land itself subject to the easement. If the owner of land abutting on a public road has a right of property in the easement, it necessarily follows that no change or alteration can be made without first making compensation to the owner, as it would be a taking of private property for public use without compensation; but he has no other interest except such as is common to the entire public, and where he is the owner of the land and the road is discontinued, its use then reverts to him to the extent he has title, but no further.

This court in the case of Lexington and Ohio R. Co. v. Applegate, reported in 8 Dana, 294, recognizes the distinction between the streets of a town or city and an ordinary public way. “An ordinary public way,” says the court in that case, “may be discontinued or applied to some other public purpose than that for which it was first established, without any legal liability for pecuniary compensation to the local public or to any owner oí adjoining land — because neither such public nor proprietor had any right of property in the way, or any other legal interest in it than that which was common to all the people.”

The distinction is this : Ordinary highways, or what are termed county roads, are created by law for the public, and the land or its use taken from the owner in the first place by paying him its value; or there may be sometimes such a dedication by the individual owner and an acceptance by the county court, as will create this easement without compensation. The streets of a town or city are acquired hy grant with the implied right of ingress and egress to the abutting lot-owner, the grantor, or the party making the dédication, saying to the owners of lots, this right of ingress and egress you shall have. But not so with an ordinary public road. The State creates the easement for the entire public ; its use is that of the public, one citizen having as much right to this use as the other, and when its abandonment or non-use is deemed necessary for the public good, the county court may discontinue it altogether, and in that tribunal the question must be made. In the case of Campbell Turnpike Company v. Dye, &c., reported in 18 B. M., 761, the construction of this same statute was the matter in controversy. The statute reads': “No lateral road shall be opened to and from the same places now connected by any turnpike, gravel or plank road, or which may hereafter be so connected, as to run within one mile of such road; and -any such lateral road now in use, or which may hereafter be in use, shall, by order of the county court, be shut up and closed. But such lateral roads shall not be precluded from so running as near as a mile-for the distance of one mile from any town or city.” (General Statutes, chap. 110, sec. 13.)

The court, in alluding to .the argument made by counsel as to the individual injury that must result to the owner of the abutting land, expressed the-opinion that no such question could be raised on the-hearing in the county court, the statute being imperative as to discontinuing the road. All the county court could do was to obey the statute. It is true the constitutional question was not raised in that case, but the inconveniences resulting to the land owners were greater in that case than in this, and such as to suggest to court and counsel the- importance of a careful consideration of the question; and besides this court has, since the case referred to, passed upon the rights of the land owner in that class of' cases more than once in manuscript opinions, and while no constitutional question was made, we are-satisfied the statute would have been held valid in those cases, as it must be in this.

Judgment sustaining the demurrer to the petition-' is affirmed.