115 Ky. 723 | Ky. Ct. App. | 1903
Opinion of the court by
Reversing.
Appellant was the owner of certain lands over which he had granted an easement to the public to maintain a highway. This grant was in the nature of a contract, made in 1887 with the fiscal court of Martin county. Its material part, so far as the question here is involved, is as follows: “Whereas the public road or a portion of same running over the land of first parties has washed away, and all par
The language of the above-named contract, in our opinion, granted to the fiscal court of Martin county merely an easement or roadway over appellant’s land, he retaining the title to the fee. This being true, it was not competent for the fiscal court of Martin county, as owner of the,servient estate, by any conveyance or license it may have granted appellee, to affect appellant’s right or title in, or impose an additional servitude upon, the dominant estate. That the laying of the gas main under the surface of the highway in a rural district is an additional servitude, there can be no doubt. Kincaid v. Indianapolis Natural Gas Co., 124 Ind., 577, 24 N. E., 1066, 8 L. R. A., 602, 19 Am. St. Rep., 113. The action of the fiscal court was competent only to grant such right as the county had in the premises transferred, but neither the county nor other power could appropriate or authorize the taking of the citizen’s private property, even for a public use, without compensation first being made to the owner.
The manner of eliciting the facts by the interrogation of the witnesses upon the trial was not such as to bring out clearly the elements of appellant’s damages. The facts shown, however, entitled him to have recovered something for the taking of his land in laying the line in 1898 and January, 1899, and possibly for damages besides to his other land. It was therefore error for the court to have granted appellee a peremptory instruction at the close of appellant’s testimony. Appellant’s cause of action set out in his pleadings, and shown by his proof, was to recover first from appellee the value of his estate taken and used by it in the construction of its pipe line under the roadway over his property, and made in December of 1898 and January of 1899. This he was entitled to, not as a matter of damages, but as compensation. It is not material whether it damaged his other property or any of his property,
The judgment is reversed, and cause remanded for a new trial under proceedings not inconsistent herewith.