188 Ky. 122 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
This appeal is from a judgment of the circuit court in a proceeding which had its origin in the county coubt, in an attempt by appellees, H. T. Morgan and others, to oíanse a passway to be condemned for their benefit, over the lands of appellant, as provided by article 2 of chapter 110, Kentucky Statutes, edition of 1909, and which was a pairt of an act of the general assembly of June 23, 1893, as amended by act of March, 1904, and which statute, sio amended, was at the time of the institution of the proceeding, in force, and had not been repealed by an act of March, 1918, which is embraced by the sections of chapter 94a, Kentucky 'Statutes, vol. 3. The ground upon which the condemnation of the passway was sought, was the ,alleged necessity for the appellees to have a ■private passway over the lands of appellant to enable them to attend courts, elections, railroad depots, etc. The proceeding resulted in an establishment of the pas-sway by a judgment of the county court and an assessment of damages for the benefit of appellant, and from the judgment she appealed to the circuit court, where upon a trial, de novo, a judgment was rendered establishing the passway and fixing the damages to be paid to appellant, and it is from the latter judgment she has appealed to this court. A history of the proceeding will
(a) The failure of the commissioners to find and report whether the establishment of the passway was necessary to enable the applicants to attend courts', elections, church, railroad depot, etc.
(b) The failure to find and report the damages to the residue of appellant’s lands beyond ihe consequential benefits which would be derived to such residue by the establishment of the passway.
(c) Because two gates were proposed to be located upon the passway, by the report of the commissioners, when the propriety of the gates was not referred to'the commissioners by the order of their appointment.
These exceptions of appellant to the report of the commissioners, were evidently sustained and the report set aside, although the record fails to show any ordeir of that kind, or any judgment of the court upon the exceptions, but, on August 14, 1917, an order was made,
The appeal from the judgment of the county court was taken on October 6, 1917, and the proceeding thereafter was pending in the circuit court until February 15, 1919, when a trial was had and resulted in the verdict of the jury fixing the damages to which the appellant was entitled at $150.00, and the establishment of the passway by a judgment of the court in accordance with the verdict. The appellant’s grounds for a new trial contain many objections to the validity of the judgment, but the consideration of them will be confined to the ones represented in the grounds for a new trial and now relied upon for a reversal of the judgment.
The reasons urged'for a reversal of the judgment and which will be considered in their order are
(1) ¡Process was not served upon, nor a copy of the second report of the commissioners delivered to appellant. • ,
(a) Because of the bias of two of the commissioners against appellant.
(b) Because an erroneous measure of damages was fixed by the county court in the ordér appointing the commissioners.
(3) A peremptory instruction to find for appellant should have been given.
(4) 'The motion for a judgment in favor of the appellant, notwithstanding the verdict of the jray,. should have been sustained.
(5) The court erred in the admission and exclusion of evidence.
(a) By subsection 2 of section 4348, and section 4350, Kentucky Statutes, 1909, act of June 23, 1893, which was in force at the time of the proceedings, it was required that upon the filing of the report of the commissioners, the clerk of the court should issue process against the owners over whose lands the passway was proposed, and that the commissioners should deliver a copy of the report, ten days before the court was required to act upon the report, to such owners. The purpose of these requirements was to apprise the owner and tenants of the lands, over which the passway was proposed, of the fact and the pendency of a proceeding for that purpose, and to enable them to present such objections to the proceeding as they might desire, by the way of exceptions to the report. It is not necessary to say that the establishment of a passway, without the service of process upon the owner.of the land over which it is proposed, and the delivery' of a copy of the report of the commissioners to Mm, as provided by the statute, would be a nullity, unless the proprietor of the lands should render such service and delivery, unnecessary, by the entry of his appearance to the proceeding. It is certainly useless to summon one to appear and to show cause why a report should not be confirmed, and to deliver a copy of it to him when he waives those requirements by voluntarily appearing and presenting exceptions to the report embodying his objections to the report, and to its confirmation. The amended report, so called, of the commissioners was filed on September 10th and on the 12th of September the appellant moved the county court to dismiss the proceedings, because she had not
(b) On February 11th, 1919, after the proceeding-had been pending for more than a. year in the circuit court, the appellant filed her affidavit in support of, and moved the court to set aside the order of the county court appointing two of the commissioners, and to appoint two others in their stead. If this motion is to be treated as an exception to the report of the commissioners, its overruling was not erroneous for several reasons. The ground upon which the motion is rested is that the two objectionable commissioners were “unfriendly to her interests, and unfriendly to her husband, and prejudiced against her rights.” No reason is given why the objec
(c) The exception to the report because of an erroneous measure for assessment of damages in the order appointing the commissioners and directing- them as to their duties, was not presented until the proeeed
(d) The appellant’s motion for a directed verdict in her favor, which was made, both, at the close of the testimony for the appellees and at the close of all the eyidence, is based upon the fact that there was no evidence which proved that notice was given by appellees,
It is, also, insisted that a verdict should have been directed for appellant, because she filed an answer, and in her answer denied that the appellees were the owners of the lands claimed by them, or that each of them had a passway over the lands of the other, so as to connect their premises with the passway sought to be established over the lands of appellant, and that no evidence was offered to prove their ownership of the lands upon which they resided. This paper, called an answer, was filed in the circuit court on February 12, 1919, more than a year after the appeal to that court had been taken and one year and a half after the institution of the proceedings. It is not pretended that it is an exception to the report of the commissioners, but, an answer to the application of the appellees to the county court for the appointment of commissioners, and an attempt to put in issue, at that late day, the status necessary to be occupied by the appellees to entitle them to the establishment of the passway.- -Section 4348, Kentucky Statutes, 1909, provides that the commissioners appointed by the - county court, upon an application for the establishment of a private passway, and such section is still a part of the statute law, as appears from section 3779a, Kentucky Statutes, vol. 3, shall consider, decide and report all the necessary facts to entitle the applicants for the pas-sway to have such established. The commissioners must report ulpon the necessity of the' establishment of the passway; describe it by metes and bounds, courses and distances; and must, also, find and report the damages to which each owner or tenant is entitled. The facts necessary to sustain the proceeding are thus stated in the report and serve much the same purpose as a petition in an ordinary or equitable action. The owners and tenants are then summoned to show cause, if any they have, why the report shall not be confirmed. The owners and tenants may then, by exception to the report, present any defense or grounds of objection which they may
(e) The motion for a judgment, non obstante verdict o, is based.upon an allegation in the paper designated as an answer, above mentioned, to the effect that the applicants had three practical ways of reaching courts, elections, etc., and that this allegation was not denied. This motion was overruled properly for the reason given, that this paper did not present any issue to bo decided.
(f) The appellant insists that the evidence offered by her, upon the necessity of the establishment of the passway, was rejected and that such was a substantial prejudice to her rights. The commissioners reported that the passway was necessary for applicants to enable them to reach the courts, elections, etc., and appellant did not except to the report upon that ground, and hence must be deemed to have conceded such to be the fact, and hence there is no issue upon that subject. The court erroneously instructed the jury as though the question of necessity was an issue, but, appellant was not prejudiced thereby, as the one issue for the jury was the amount of damages to which she was entitled, and she could not be prejudiced by a chance to defeat the proceeding upon the ground of it being unnecessary, as well
(g) The instructions .offered by appellant and refused, were upon the issue as to the necessity of the establishment of the passway, and for reasons above given, properly refused.
The judgment is theiefore affirmed.