198 Ky. 346 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
R. E. Bentley owns a small farm without any outlet. For many years he had permissive use of a private pass-way running over an adjoining tract of 112 acres to the public road. In the year 19— this tract was purchased by Miss Mary Moore and the passway closed.
In a proceeding in the county court under section 3779a, Ky. Statutes, Bentley sought an establishment of a passway along the old route. The commissioners’ report conformed to the petition as to the necessity and route of the passway, provided for the location of gates and fixed the compensation of Miss Moore at $100.00.
Exceptions were filed to this and damages claimed' in the sum of $2,500.00. In the first trial in the county court the jury disagreed and a second trial resulted in a verdict to establish the passway and fixed Miss Moore’s damages at $100.00. Dissatisfied with this she appealed to the circuit court where the jury found for the plaintiff a gated passway and that no further fencing was necessary and fixed Miss Moore’s damages at $325.00. From a judgment in conformity with this verdict she has appealed.
It is earnestly insisted that the court erred in not permitting plaintiff to prove that another passway could have been constructed'over appellant’s land at a small expense and in a way that would have caused comparatively little damage to her land, while the. one established is 1,925 feet in length and runs through the heart of her farm. Evidence to this effect was offered, objections sustained and avowals made. This evidence would have been competent if such an issue had been raised by the viewers’ report or by the exceptions thereto, which in cases of
■In that case as in this the petition described the route sought to -be established and the viewers’ report found that route practical and necessary; but in that case the landowners by exception pointed out another route which they claimed to be more practical. When such exceptions are filed it is proper to introduce evidence in support of them. In this case no exceptions of this character were filed, hence appellee was not called' upon to meet that issue, and the court properly sustained the objection to the evidence.
It is suggested that the jury had no right to find that no additional fencing was necessary, but they should have allowed damages for the value of fencing the proposed passway, and then appellant be permitted to decide whether or not she would construct it. This is an issue properly submitted to the jury, the element of damage being the expense of extra fencing caused by the passway, and one which the jury are peculiarly qualified to determine. ' Finally the appellant urges that the damages were inadequate. It is rather persuasive on this question that the commissioners and three juries have considered it and this verdict is the highest amount that has been fixed by any of them. The
Judgment affirmed.