Kirk-Christy Co. v. Am. Ass'n

128 Ky. 668 | Ky. Ct. App. | 1908

Opinion op the Court by

Judge Hobson

-Reversing.

•These proceedings were instituted in the Bell county court by the Kirk-Christy Company against the Louisville Property Company and the American Association, Incorporated, to condemn a right of way over their lands under the act of 1904, so that it might get out certain timber owned by it. See Acts 1904, p. 311, c. 126. The county court dismissed the proceedings on- the ground that the act is unconstitutional. The plaintiff appealed to the circuit court, which concurred in the same view. From this judgment, the appeals before us are prosecuted.

In the recent ease of Chesapeake Stone Co. v. Moreland (Ky.), 104 S. W. 762, 31 Ky. Law Rep. 1075, 126 Ky. 664, decided since these cases were heard in the court below, we held the act constitutional. We are asked to reconsider that ruling; but upon a re-examination of the subject we see no reason for disturbing the rule then laid down. Under that act a corporation no less than a private person may institute the proceedings. The act makes no distinction between natural and artificial persons. Neither the language nor the purpose of the act would justify a distinction. A foreign corporation is an artificial person in this State no less than a home corporation. If it be true that the applicant has not complied with our statutes, and is not entitled to do business in the State, this defense may be presented by answer. It was unnecessary for the plaintiff to anticipate in its petition matter of this sort. When the petition of the applicant shows the necessary facts required by the statute, the court should make an order appointing commissioners, and upon the coming in of the report of the commissioners process should go against the owners to show cause why the report should not he confirmed. They may then make their defense', hut the court-should not hear the case twice; and no process- against the landowners is necessary until the report of the commissioners as filed. The purpose of the statute is that the facts he gotten before the court by the report of the commissioners before any hearing of the case by the.court; for it may be that the commissioners -will lay- off a different route from that asked by the applicant, and no-issues should he heard in the case until the report of the commissioners comes in and -it is - definitely settled where the way will be located. Section 2 of the act of 1904 is as follows: “Upon the filing of the report of-the commissioners, the clerk of the county court shall issue process -against the owners te show cause why the said report should not be confirmed, and shall make such' orders as to nonresidents, and persons under disability as-are required by the Civil Code of Practice in actions against them-in' the circuit court.” Section-4340, Ky. St. 1903, which is a part- of the -original act, is in these words: “The applicant for commissioners'shall give the person -through whose land the passway is- proposed 10 days’ previous notice of the intended application.” When these provisions are read together, we think they mean that the applicant must give the person through whose-land the passway is proposed 10 days’ notice of the intended-application,- so that he may be heard in the county court, if- he desires to be, as to who shall be commissioners, and-as to whether or not the applicant presents-a state of facts, bringing him within.the- statute; but all questions which go to the -merits of the case, where an issue is taken upon th,e petition, should be tried after the commissioners’ report is filed.

Judgment reversed, and cause remanded to the circuit court, with directions to remand it to the county court for further proceedings consistent herewith.