52 Ky. 333 | Ky. Ct. App. | 1852
delivered the opinion of> the court.
The county court of Shelby county at its May term 1852, made a rule upon Churchill and Myers requiring them to show cause why they “keep a lumber yard, and are erecting a building” on the north-east corner of the public square in Shelbyville for private use, contrary to the statutes, &c., to the great annoyance of the public and especially of the owners of lots east and north-east of said square, and why said lumber and building should not be removed from said square ? To this rule there was an immediate appearance ; and the motion of the defendants to discharge the rule for want of jurisdiction in the court having been overruled, it was proved that the defendants were erecting a wooden building on the northeast corner of the public square, and had some lumber lying there, and several witnesses gave their opin
Upon the other branch of the objection, we are of opinion that the act of 1796, (Stat. Law, 128,) in prohibiting appeals unless “the judgment or decree amounts to thirty pounds, or relates to a franchise or freehold,” did not intend by the use of the word “freehold” to confine the appeal in cases affecting interests in land, to those cases only in which the right to a freehold estate — that is, to an estate of inheritance
In the present case, as it cannot be pretended that the county court has authority, as a judicial tribunal or otherwise, to inquire of nuisances erected on the lands of individuals, or of the state, or to direct the
Assuming then that the case is properly before tis for revision, we are next to' inquire into the jurisdiction of the county court to institute this proceeding, and to make the order now brought before us. On this question, we are of opinion, that whatever right or power the county court has by its own act or will to direct or coerce tile removal of nuisances or unauthorized erections or obstructions from the public square, or to forbid and prevent their being placed there, is not a judicial power, but that so far as it exists, it is a mere incident to the right of property, or to the right and duty of controlling and protecting the public square. In saying that the court has no judicial power on the subject, we mean that it has no power to decide upon conflicting rights or claims, and to render a judgment thereon. And we say this because their power is derived wholly from statutory enactments, and is only such as is expressly granted,
If the county court has no property or title in the public square, and no peculiar control or guardianship over it, then it has no more right to remove or prevent an obstruction or erection upon it than upon the land of an individual. If it has such property Or control and guardianship, then, in virtue thereof and as incidental to its rights in and authority over the square, it may have the right to prevent or remove unauthorized and illegal obstructions, just as an individual owning land or having authority from the owner may have the same right. Butin neither case does this light either imply or confer judicial power. It is true, that in all- cases in which an individual has a right to do a certain act in a particular state of case, he judges or rather determines for himself in the first instance whether the case exists in which he is authorized to act. But he judges for himself alone and not for the other party, who is therefore not bound by his decision, but may upon his own judgment for himself refuse obedience' to it, or by such means as the law affords or permits resist its enforcement or question its propriety. In the absence of any legislative enactment conferring upon the county court judicial cognizance over erections, obstructions, or other nuisances upon the public square, that is, unless it has by statute the power of “hearing and determining” such matters, (and we know of no such statute,) we do not perceive that its right or power over such subjects is essentially different from that of an individual as just described, except that as the court declares its determinations by orders upon the record, and executes them through its ministerial agents, there is more solemnity and more apparent authority in its
The incidental right of the county court to determine for itself in the first instance that there is an unauthorized and illegal obstruction on the square, conceding it to exist, might be properly exercised by an order directing its ministerial officer to remove the obstruction. But such order, though binding upon the officer, would not be binding upon a party claiming the right to erect and maintain the obstruction. And he might resort to the appropriate remedy of prevention or redress whereby the legality of the order, or of the act done under it, might be presented to a court of competent original jurisdiction for its determination. But here the court has not merely directed its officer to remove the obstruction, leaving the party whose claim it denies, to his appropriate remedy for the assertion and adjudication of his right; it has made the order directly upon him, and if the order is valid and effectual, it is a final judgment against his right, and leaves him no other remedy but that of a reversal. It is, therefore, an attempt to give to the exercise of such power as the court has upon the subject the form of a judicial proceeding and the effect of a judicial determination. It is an attempt, therefore, to exercise judicial power in a case in which the court has no judicial power. The fact that the party claimed a right derived by contract from the court itself, if it affects the question at all, renders it more improper that the court, as one of the parties, should have undertaken to adjudicate upon that claim. And, upon the whole, we are of opinion that in trying the question of right, and in the final order thereon, the
Wherefore the order of the county court is reversed, and the cause reminded with directions to discharge the rule.