200 Ky. 788 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
The judgment from which this appeal is prosecuted was rendered in the Ohio circuit court on an appeal from a judgment entered in the Ohio county court, denying appellant Williams the establishment of a private pass-way over the lands of Render, et al., under sections 3779a, etc., of Kentucky Statutes. It is provided by the sections of the statutes to which we have referred that whenever it shall appear to a county court that it is necessary for a person to have a private passway over the lands of one or more persons to enable him to attend church, elections, a meeting house, a mill, warehouse, ferry, a railroad depot most convenient to his residence; or wherever it shall appear to the county court that it is necessary for a person to have a private tramroad, etc., over the lands of one or more persons to enable him to reach a warehouse, steamboat landing, a railroad switch or other place, the court shall appoint commissioners as in case of a road, who, being first sworn to discharge their duties faithfully and impartially, shall go upon the lands of the persons-through which the passway is proposed, and shall report in writing to the court whether a private passway or tramroad is necessary for any of the purposes stated above, and if favorable to the passway the commissioners shall, in their report, designate the exact route by metes and bounds, distances and the width thereof, and shall determine and assess a just compensation for each owner and tenant for the lands proposed to be taken for a pass-way.
After the filing of the report, of the commissioners, process must be issued by the court against the landowners. If exceptions be filed with the report of the commissioners a jury may be impaneled to try the questions of fact arising on the exceptions, and the applicant for the road may appeal from the judgment of the county court to the circuit court of the county.
Appellant Williams is the owner of a small bottom farm on Rough river in Ohio county. No public highway
We think the facts of the case before us were sufficient to establish the necessity contemplated by the statutes to warrant the establishment of a passway for the use of appellant over the lands of appellees. '
While the verdict of a jury on the issues raised by the exceptions to the commissioners’ report are not conclusive and are only advisory to the court, we are inclined to give much consideration and weight to the verdict of a jury upon the question of necessity, especially when it follows the recommendation of the commissioners who viewed the premises and made the survey of the proposed passway. The court may -disregard the finding of the jury and enter a judgment denying the applicant a private passway over the lands of his neighbors when to do so does not abuse a sound discretion; but where the facts show with reasonable certainty that the applicant has no reasonable way of getting from his home and farm to the county seat, voting place, church, school or other place requiring the attendance of a citizen in the performance of his duties to his community and state, the pass-way should be adjudged a necessity and established in accordance with the section of the statutes to which we have referred.
For the reasons indicated the judgment is reversed for proceedings consistent with this opinion.
Judgment reversed.