67 Ky. 448 | Ky. Ct. App. | 1868
delivered the opinion of the court:
The statute concerning turnpike and plank roads (ch. 103, page 436, 2 Stanton's Revised Statutes), and authorizing the condemnation of land, rock quarries, and other materials for construction, provides, in the 37th section, that “ no quarry shall be condemned within two hundred yards of any dwelling-house, or so near to any garden, orchard, or spring as materially to impair the value of the same.”
The whole legislative intent is not clearly defined by the statute.- We are satisfied, however, that the principal object was to prevent annoyance to the domicil, and that it is not material whether the owner or his tenant dwells in it; but we are also satisfied, that, to entitle the owner to the statutory exemption, the house, humble and fragile though it may be, must have been erected for the purpose of being used as a dwelling-house, and for no other purpose, or that it was converted, “in good faith,” into a dwelling-house; and, therefore, as in this case the facts authorized the deduction that the “ shanty” was put up and occupied for the sole purpose of preventing the condemnation of the quarry, and not “in good faith” for a dwelling-house, the instruction to the jury was right, and their finding proper.
Wherefore, the judgment appealed from is affirmed.