197 Ky. 518 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Some of the appellees and plaintiffs below own land abutting on what is alleged in the petition as a public road in Logan county and known as the Mills road, and which runs practically east and west and immediately adjacent to the south side of the right of way of the Louisville and Nashville Railroad Company, and being that part of the road between Ferguson station (formerly known as 'Whippoorwill station) and Young’s crossing where Poors Mills road crosses the railroad track about one-half mile slightly south of west from the station referred to. The other plaintiffs own land in the immediate vicinity of that portion of the road involved and have used it as members of the public, and especially as an ingress and egress in travelling to and from their homes to places designated in the statute as grounds for opening a private way.
The action was filed to enjoin defendants who owned land abutting on each end of that portion of the road involved from obstructing it and to mandatorily require them to remove obstructions already put in it upon the ground that the road was a duly constituted public one and had never been legally abandoned. The answer denied the averments of the petition and further pleaded an abandonment of that portion of the road involved, if it had ever been a public one, and also relied on facts which it is claimed under the doctrine of the case of Trimble v. King, 131 Ky. 1, created an estoppel against plaintiffs from insisting on the relief demanded. Limitation was also relied on. Appropriate pleadings made the issues and after extensive preparation the case was submitted and the court by its judgment granted the relief sought to the extent of ordering the road unobstructed to the width of 16 feet, though the petition alleged that, as originally' dedicated in 1866 and legally opened and accepted in 1867, it was 30 feet wide. From that judgment defendants appeal and rely on a number 'of errors as grounds for reversal. - We shall dispose of the material ones in the course of this opinion.
Under numerous cases from this court, the latest of which is Rockcastle County v. Norton, 189 Ky. 690, it was held that a public road may be established, without conforming to the formalities prescribed by the statute for the condemnation of land to enforce the opening of a road, by parol dedication of the owners followed by the record acceptance of the county, and it follows as a mat
At this point, however, it is insisted that Levi Mills, one of the dedicators, did not possess the title to that portion of his alleged land over which the road ran and some of which is now owned by defendants. It is in proof, however, and not denied, that he had purchased and paid for the land but the deed to it, from some unexplained cause, was executed to his father, John Mills, who in 1874 conveyed it to Levi Mills, which, if true, and we are not authorized to find the fact otherwise, would render his dedication valid, sine© he was the equitable owner of the land at the time of the dedication, his father holding only the naked legal title for his use and benefit. Independently of that fact, however, we would be very much inclined to hold, under the undisputed facts, that his father, John Mills, adopted and acquiesced in the dedication attempted to be made by his son, Levi, and that the privies of the former, who had knowledge of such acquiescence, would be bound thereby. We, therefore, conclude that plaintiffs conclusively showed the portion of the road in contest to be a legally established public road.
It is next insisted by defendants that if that be true the county by its duly constituted authorities in 1898 established another public road running from the bridge over Whippoorwill creek near Ferguson station in a southeast direction and along the bank of that creek to the point where Poors Mills road fords that creek and it thereby abandoned the road in contest, since after that time the latter road practically ceased to be worked by an overseer'with allotted hands. It is shown, however, in the opinion in the Norton case, supra, as well as in
It is furthermore argued that the road, as originally opened, was on the right of way o'f the railroad company and not on any of the abutting lands. The chancellor, however, found to the contrary, and without reciting the testimony, wu find it abundantly sufficient to sustain him. It is true that on occasions and at some places in the road, which had been a traveled way for nearly 75 years, would deviate around mudholes or other obstructions and for a time at least portions of it would be on the railroad right of way, but such facts can not be distorted so as to effectually cleprive the county and the public, whom it represents and serves, of the right to use that, portion of the ground which was dedicated and accepted as a public road. We, therefore, attach no importance to this contention.
It is next insisted that plaintiffs are estopped, under the doctrine of the Trimble case, supra, to maintain the action, since it is claimed that they stood by and watched defendants improve their lands covered by the road, but this contention is unsupported by the facts, even if this case should be governed by the doctrine of the case referred to, which is evidently untrue. The only improvements made by any of the defendants as a basis for the alleged estoppel was the digging of an alleged pond by defendant,-C. L. Mills, on a portion of the roadway on his farm, and the possible fact that one or two forest trees would have to be removed in opening the road as. the court adjudged, and,-possibly, the removal of a few fruit trees which he planted since he first obstructed the-road-some fifteen or twenty years ago. The testimony largely preponderates that no trees- of any kind would be-removed, since.none are in the. adjudged roadway; and the
Another argument is, that C._ L. Mills has obstructed, the east end of the portion of the road in contest for more than fifteen years, and ás to him the statute of limitation is relied on. This contention, however, overlooks the fact that section 2547 of the statutes expressly declares that “Limitation shall not begin to run in favor of any person in the possession of any public road, or any part thereof, until written notice shall be given to the county court of the county in which the road is situated, that such-possession is adverse to the right of the public to the use of such road; ’ ’ and it is not pretended that any such writ.ten notice was ever given by either of the- defendants or any one else. But it is insisted, that the section last referred to was repealed by- section 89 of chapter 80, page 338, of the Session Acts of 1914, which is now section 4356s, 1922 edition of the statutes. That section does attempt to expressly repeal a number of designated sections of the printed statutes, including 2547, but it was held by this court in the cases of Exall v. Holland, 166 Ky. 315; Huston v. Boltz, 169 Ky. 640; Fitzpatrick v. McGinnis, 174 Ky. 600, and Wolf v. Bailey, 184 Ky. 481, that the repealing section (89) of the 1914 act was enacted contrary to the provisions of section -51 .of the Constitution in that no reference was made in the title to the 1914 act of the intention to repeal those sections, ■ and
Lastly, it is contended that the judgment was erroneous in ordering the obstructions to be removed from only a width of 16 feet, when section 4288 of the statutes requires public roads to be as much as 30 feet wide. In the first place the statute containing the requirement was enacted after the establishment of the road in contest, and by its express terms does not apply to it. Independently, however, of that fact, defendants may not complain because plaintiffs did not obtain all the relief to which they were entitled, and especially when it is made to appear, as it does in this case, that the road was narrowed in order to avoid talcing in a part of a family graveyard and to otherwise damage defendants as little as possible consistent with the substantial maintenance of the public’s rights, as well as those of plaintiffs.
Upon the whole case we are constrained to the conclusion that no error was committed prejudicial to the substantial rights of defendants, and the judgment is affirmed.