199 Ky. 447 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Oil October 7, 1918, Thomas A. Bryant and four other residents and landowners of Adair county filed in the Adair county court their petition asking the establishment of a public road leading from the Stanford road to the Oak Grove road. The county court appointed viewers, who filed a report recommending the establishment of-the road, and assessing damages to J. E. Burton and others, who filed demurrers and exceptions to the petition and the viewers’ report. The county court determined that the work should be undertaken and entered an order fixing the damages. The remonstrants not being willing to accept the damages fixed by the court or to agree on the amount, the court appointed three commissioners to assess the damages. The commissioners filed a report fixing the- damages, and on final hearing the county court entered an order overruling the exceptions, directing the establishment of the road and fixing the damages in accordance with the report of the commissioners. On appeal to the circuit court the case was submitted without the intervention of a jury, and the court rendered judg-. ment establishing the road as ordered opened by the county court, and fixing the damages. Prom that judgment this appeal is prosecuted.
The first question presented is whether the appeal lies. Section 4303, Kentucky Statutes, 1909, provided for an appeal in road proceedings to this court. In the year 1914 the legislature passed an act entitled, “An Act defining public roads, providing for their establishment, regulation, use and maintenance, and creating the office of county road engineer and prescribing the duties thereof.” Acts 1914, c. 80. Section 89 of that act expressly repealed sections 4287-4356, Kentucky Statutes, 1909. Of these sections, sections 4348-4356, inclusive', constitute article 11, c. 110, Kentucky Statutes, 1909, and relate only to private passways. In Exall v. Holland, 166 Ky. 315, 179 S. W. 241, we held invalid so much of section 89 of the act of 1914 as attempted to repeal sections 4348-4356, on the ground that to that extent the section related to a
Appellants filed numerous exceptions to the viewers ’ report, and it i's now insisted that some of these excep
On the question whether the proposed road was neces- ■ sary for the public convenience, the evidence is conflicting, and we are not prepared to say that the finding of the circuit court is flagrantly against the evidence. Soaper v Kimsey, 144 Ky. 32, 137 S. W. 797.
But it is earnestly insisted that the damages allowed are wholly inadequate. The viewers assessed the damages as follows: To J. E. Burton $65.00, to J. W. and Malinda Burton $65.00, and to Rosa L. Curry $65.00. The county court fixed the damages as follows: J. E. Burton $50.00, J. W. and Malinda Burton $50.00,. and Rosa L. Curry $50.00. The commissioners fixed the damages as follows: J. E. Burton $25.00, J. W. and Malinda Burton $30.00, Rosa L. Curry $30.00, 'and their report was confirmed by the county court. On appeal the circuit court fixed'the damages of J. E. Burton at $50.00, of J. W. and Malinda Burton at $50.00, and of Rosa L. Curry at $50.00. While it is true that the evidence for appellants tends to show that the damages were far in excess of those fixed by the circuit court, yet, in view of the fact that there is always a wide difference of opinion respecting the amount of damages in cases of this character, and of the further fact that the. finding of the circuit court is the same as that of the county court and only a little less than the finding of the viewers, and substantially twice the finding of the commissioners, we see no reason to hold that the damages are inadequate.
Judgment affirmed.