189 Ky. 690 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
This action was instituted by the appellee, J. M. Norton, against the appellants,' Rockcastle county and
A portion of the road as established extended over the lands of appellee—that is from about where the road crossed Skeggs creek to a, point where the lands of appellee adjoin the lands of one Rome Graves. This portion of the road had three hills upon it, was steep, rocky and difficult of travel by a loaded wagon. An agitation had been going on among the residents of the vicinity, and especially among those persons who were assigned by the county court to assist an overseer in keeping it in repair, for several years, to have an alteration made in the location of the road, at this point, so as to obtain a better grade for the road, and to avoid the hills, and in 1909 or in 1910 the people whose lands adjoin a portion of the road, an alteration-in which was desired, and such of the persons assigned to keep the road in repair, as were present at the time, gave their assent to the alteration, and certain persons who lived south of the road with an outlet from their premises to it, within the proposed alteration, seem to have assented thereto, or acquiesced therein, when the appellee agreed to open a passway across his lands to the road to connect with the road when altered. In the meantime, verbal exchanges in regard to the alteration appear to have been taking place between the then judge of the county court, and the overseer of the road, and probably other parties, who were either for or opposed to making the change in the course of the road. Just what the parties understood from these verbal exchanges does not appear, but just before the alteration was made the overseer, as though doubting his authority to do so, or to secure information as' to how to proceed, interviewed the judge of the county court over the telephone, and was assured by the judge that he had made an order, presumably in his court, directing the alteration to be made, and further directed the overseer to proceed and effect it, and in accordance with the authority which he supposed the county judge had and had exercised, he proceeded to do it. The appellee in consideration of the alteration, agreed to permit the new road bed made necessary by the alteration to be located upon his lands, and to erect at his own cost, the new fencing made necessary to inclose his lands, along the new road bed, if the county court would pay the bill for the wire fencing. This appellee understood from the overseer to have been agreed
The record develops the fact that there was never any proceedings in the county court of any kind with
The county court, treating the portion of the road which has been obstructed by the fences, of the appellee, as still a portion of the public roads of the county, and never having been discontinued, appointed an overseer for it and the appellee having refused, after notice, to remove the fences from across the road, the overseer was proposing to remove the fences and to open the old road bed again for travel, and to restrain him and the county court from so doing, this action was instituted.
A great deal of evidence was heard relative to the respective merits of the old road and the new portion of it as avenues of travel, and much argument is indulged in relative to the binding effect of a dedication of the land for a public road by parol, and the effect of an acceptance of such a dedication by the county authorities, as well as the ill-conveniences visited upon certain persons by the obstructions to the old road, but none of these seem to involve the question upon the determination of which a decision of this action depends. The appellee, without doubt, had a right by parol to dedicate to the public the land covered by the attempted alteration in the road, which for convenience, we call the new road, and the county court might accept such dedication, either by an order formally made upon its records, or impliedly by taking supervision and control of it, and yet the question as to the discontinuance of the old road would be unaffected. The question upon which the decision of this, action must turn is whether or not the acts of the parties had the effect of discontinuing any part of the public road which was then fully established. It would seeua that the inevitable answer must be that parties cannot, by a private- agreement between themselves, divest the public of its interest in property of which the entire public is the owner. The right of the en
The act of March 10, 1894, was in force at the time the proposed alteration was attempted to be made and the portion of the public road discontinued. This act was embraced in chap. 110, Kentucky Statutes, edition of 1909. Section"4289 of that statute provided as follows :
“All applications to have a new road opened, or a former one1 changed or discontinued . . . shall be by petition to the county court signed by at least five landowners of the county, which petition shall set forth in writing a description of the road, and what part thereof is to be altered or vacated. . . . ”
Section 4290 provides as follows:
“Previous to the filing of any petition mentioned in the preceding section, notice thereof shall be given by posting written or printed notices in at least five of the most public places in the district or districts in which said road shall be located, for at least twenty days prior to the term of court at which such petition is to be presented, which notice shall state the day when such petition is to be presented and the substance thereof, and a copy thereof shall be filed with the petition.” Section 4291 provided that if the court was satisfied that the notice had been given as required by the preceding section, it should then appoint commissioners, and by section 4292 they were required to ‘ ‘ view the old and new route, if any alteration in the road is proposed; if a discontinuance, then to view that road . . . ” and by section 4293 to report to the court in writing the conveniences and inconveniences which will result to the public and individuals from “the alteration or discontinuance of a road.”
“At first regular term of the county court, after the filing of the report of the commissioners, on an application to discontinue a road . . . whether exceptions have been filed thereto or not the court shall upon the report and other evidence, if any, determine whether the road shall or shall not be discontinued. . . . ”
It thus clearly appears, that the right or power to alter, or change, or discontinue a public road, at that time, the alteration of the road and the discontinuance of a portion of it were attempted, was vested by the statutes in force, exclusively in the county court, and could not be effected by individuals, acting without such authority, and to give the county court, jurisdiction to effect such purposes, it must be sought by a petition of five landowners of the county, and .after notice, as required by the statute of the intention to file such petition. Under the general statutes, where a county court had made an order permitting the erection of gates, over a public road, and it developed, that notice had not been given of the application, as required by section 13, art. 1, chap. 94, of the General Statutes, it was held by this court," in Mitchell, etc. v. Bond, 11 Bush 615, that the county court was without jurisdiction to make the order, and for that reason its action could not be sustained. The requirements of sections 4289, 4290, and 4291 of Kentucky Statutes, 1909, as to the giving of notice of an application to alter or discontinue a public road are just as mandatory in their requirements, as section 13, art. 1, chap. 94, General Statutes were. The reason for the enactment of statutes requiring notice to be given to the public of alterations in public roads or their discontinuance, before even the county courts are permitted to alter or discontinue them, much less individuals, is very apparent, when it is considered, that without such notice, the public for whose use the roads are maintained would be deprived of them, without an opportunity for its day in court, and without a chance to show any reasons against such alterations or discontinuance. In Mitchell v. Bond, supra, it was held, that although certain parties appeared in court, and resisted the application, while their actions waived the failure to give notice> as far as they were concerned, they could not by such action give jurisdiction to the court, as regards the rights of the public of which the court would not have jurisdiction in the absence of notice to the pub-