181 Ky. 626 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On April 17th, 1917, Louis Gertisen, G. T. Herr and E. W. Thompson filed their petition in the Daviess county court asking that court to make certain changes in the route of the public .road leading from Owensboro to Maceo. This proceeding was taken under the Act of 1914 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, page 338. The Act of 1914 now constitutes article 1 and sections 4287 to 4356s of Carroll’s 1915 edition of the Kentucky Statutes.
Pursuant to' section 4301 of that statute the county; court appointed Schenk and Ray viewers to act with'
Gratzer and Osborne having excepted to the report, the county court thereupon appointed Wilson, Evans and Bottorf commissioners to assess the damages occasioned by the location of the new road over the-land of the objectors. Ky. St., sec. 4302, 1915 Ed. The commissioners reported allowing the. objectors damages at the rate of $300.00 per acre for land taken, but refusing them any damages on account of the abandonment of any portion of the old road. Osborne and Gratzer each filed eighteen exceptions to the commissioners ’ report, and upon a jury trial of the exceptions in the' county court Ben Gratzer was allowed $393.00 for his land and $116.00 for fencing that would be necessary, making his total award $509.00. Osborne was allowed $250.00 for land and $25.00 for fencing, making his total award amount to $275.00. Osborne accepted the judgment of the county court; but upon appeal to the circuit court and a trial by a jury Gratzer .recovered a judgment for $300.00 for land taken, and $100.00 for fencing, making a total recovery of $400.00 in that court. From that judgment Gratzer alone appeals to this court. As many of the grounds relied upon for a new trial are merely stated and not argued, we will be equally brief in disposing of them.
(a) It is first attacked because it does not give to the landowner whose land is taken for the new road a right of appeal. It is contended that this omission vio-, lates section 2 of the Constitution, which provided that
But, the property holder is given an appeal in cases of this character. It is true that the property holder has not) in express terms, been given an appeal by the Act of 1914; he is, however, given an appeal by section 4303 of the Kentucky Statutes, Ed. 1909, which was in force when the Act of 1914 was passed. This result is reached in this way: Section 89 of the act of 1914 (Ky. Stats., sec. 4356s) repeals many sections of Carroll’s Kentucky Statutes of 1909, including sections 4287 to 4356, inclusive. But in two opinions of this court it has been held that section 89, supra, violated section 51 of the Constitution, and did not operate to repeal any of the sections therein named, because the title of the Act of 1914 did not purport to repeal any of said septions. See Exall v. Holland, 166 Ky. 315, and Fitzpatrick v. McGinnis, 174 Ky. 600. But this attempt did not affect the remaining portions of the act; and there being nothing in the Act of 1914 inconsistent with section 4303 of Carroll’s Kentucky Statutes, 1909, it is still in force; and that section gives an appeal to the circuit court, and thence to the Court of Appeals in all cases where the county court has ordered a new road to be opened, and in other similar cases therein specified, So, appellant was within his rights when he appealed to the circuit court, and from the circuit court to this court; and, under any view of the case, the appellant has not been prejudiced by the failure of the Act of 1914 to provide an appeal.
(c) Again, it is contended that the Act of 1914 is unconstitutional because it violates section 242 of the Constitution, which provides, among other things, that the general assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual made by the commissioners or otherwise; and that upon appeal from such preliminary assessment, the amount of such dam: ages shall, in all such cases, be determined by a jury1 according to the course of the common law. But, as above pointed out, the statute fully complies with this section of the Constitution since it permits a trial after the preliminary assessment by the commissioners has been made..
(d) Again, it is insisted that the Act of 1914 violates section 13 of the Constitution, which provides that no man’s property shall be taken or applied to public use without just compensation being previously made to him. ■ This constitutional right was carefully preserved by the judgment in this case, which provided, in express terms, that the. damages assessed should be paid, before the property is taken.
(e) Finally, it is insisted that the Act of 1914 is unconstitutional because there is nothing in the title to indicate that the act contemplated changing or altering public roads, thus violating section 51 of the Constitution, which requires that the subject of an act shall be expressed in its title. By referring to the title of the act above given, it will be observed that it is entitled “An Act defining public roads and providing for their establishment, &c.” Without elaborating the subject, it is sufficient to say that changing the route of a road is certainly the establishment of a new road and is germane
Appellant insists, however, that the notice should contain an accurate description of the proposed alteration by giving the points of beginning and ending, the bearings, grades and width of the road, with an ac-, curate description of the part of the road -proposed to be abandoned and the names of all' the parties affected by the change of location, and by the abandonment of any part of the old .road. This would require the newspaper notice to state substantially all the facts required
The statute (section 4301) requires the viewers to, view the ground, and among other things, to report in writing “the advantages and disadvantages which, in¡ their opinion, will result as well to individuals as to the public from the proposed work and the grades and bearings of the proposed road, and the facts and circumstances that may be useful to enable the county court to determine whether such work ought to be undertaken by the county. . . . -They shall make careful examination of other routes or locations than that proposed or petitioned for, keeping in view at all times the possible future development of the county and the accommodations of the general traveling public, and shall re
The same section further provides that in any case where it shall appear to the county court that the interests of the general public may be furthered thereby, the county court shall personally examine the proposed work.
This statutory provision requiring the viewers to report the course of the proposed road and the advantages and disadvantages which will result as well to individuals as to the public,from the location of the proposed road has come clown to us,in substantially the same form, from the early legislation of the state. And, while the wording of the statute has been varied from time to time, its general purpose has remained the same. Thus, the Revised Statutes required the report of the viewers .to describe the .route by “metes and bounds, and by. courses and distances” (Vol. 2, art. 1, sec. 3, chap. 84); the General Statutes required the report to describe the road “by metes and bounds and by general courses, and probable distances” (chap. 94, art. 1, sec. 3); while the present statute merely requires the report, in this respect, to give “the grades and bearings of the proposed road.” (Ky. Sts., 1915 Ed., sec. 4301.)
In Rochester v. Sledge, 82 Ky. 345, the court stated the purpose of these statutory provisions as follows:
“The object of these provisions of the statute is to give the owner of the land over which the proposed road is to pass information of the location in order that there may be made an agreement, if there is damage, as to its amount, or that those acting under a writ of ad quod dammim may be able to lqcate the route- and thereby determine the damage.”
And, in Phillips v. Tucker, 3 Met. 70, a case tried under the Revised Statutes, it was said that the law required the road “to be meted and bounded by the viewers,” and that “to comply with that provision the points of its commencement and its termination, at least, should be fixed by some visible object, sufficient to determine their exact locality.” But under our present statute the petition must set forth specifically “the nature and location of the proposed work,” and upon that the view
And, under section 4293 of the Kentucky Statutes, 1909, requiring the commissioners’ report to state “the conveniences and inconveniences which will result, as well to individuals as to the public from the opening of the road” it was said that a report that sets out fully the conveniences the proposed road would furnish to the public, and states the amount of damages that would be .sustained by the persons over whose lands the road runs, is sufficient. Soaper v. Kimsey, 144 Ky. 32. See also Tingle v. Tingle, 12 Bush, 160.
The report of the viewers in this case as amended describes with considerable particularity the proposed road, as well as the portions of the old road that were to be abandoned, giving the terminal points and the metes and courses of each, as shown by a stirvey; and a map giving the grades and bearings of the routes was returned with the report. The viewers further reported that the new road, if established as described by the survey, would be of great advantage both to the public as well as to the individuals along its route, and. would be a disadvantage to. no one; that it would eliminate the danger of three dangerous railroad crossings; that it would not be necessary to take any burying ground,' garden, yard, orchard or any part thereof, or to injure or destroy any buildings; and- that the proposed new; road would afford to the people along its line, and to the public, a more convenient outlet to school, mill, church and post office. It also gave the names of the persons who owned lands that would be taken by the proposed road, indicating who had donated the right-of-way, and! reported that Ben Gratzer, J. M. Gertisen and Sim Osborne had not donated the right-of-way, and would require compensation, to which they were entitled, according to the opinion of the viewers. Finally the viewers reported that the proposed road should be established and portion's of the existing road should be abandoned, provided the right-of-way for the proposed new road could be obtained throughout its entire length free of expense to the county. In our opinion the report satisfied the statute. See Ward v. Campbell, 14 B. M. 339; Soaper w. Kimsey, 144 Ky. 32.
The opinion in Soaper v. Kimsey, supra, shows that the report of the viewers was amended in that case, although it does not show that the amendment was made in the circuit court. But, if it can be made in the county court, we perceive no good reason why it cannot be made in the circuit court, as is constantly done in other cases and proceedings. In either case the final trial in the circuit court is had upon the report as amended, and the appeal to this court is prosecuted upon the record as made in the circuit court.
The instructions given by the court upon the subject of damages followed the rulé prescribed in Broadway Coal Mining Co. v. Smith, 136 Ky. 725, 26 L. R. A. (N. S.) 565, by allowing appellant to recover (1) for the land taken; (2) for additional necessary fencing, and (3) for such other direct damage that would result to the re
Several other minor objections have been suggested, but they are in effect included in the questions heretofore disposed of and need not be considered separately. Upon the whole ease we are of the opinion the appellant has had a fair trial, and that the judgment of the circuit court should be affirmed.'
It is so ordered.