Citation Numbers: 156 Ky. 78
Judges: Clay
Filed Date: 11/21/1913
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Commissioner — Affirming.
This is an appeal from a judgment of the Lincoln Circuit Court ordering that certain land belonging to the appellant, Mrs. W. E. Keeton, be taken for the purpose of widening county road No. 21 at a point immediately northwest of Hanging Fork Ford.
Three errors are relied on: (1) Insufficient description of the land proposed to be taken; (2) failure of the trial court to give peremptory instruction in favor of appellant based on the contention that the proceeding was not one to widen a public road, but to alter a public road, and the statutory notice required in the latter case was not given; (3) error of the court in submitting to the jury the question of the necessity of a bridge over Hanging Fork Creek.
Section 4301, Kentucky Statutes, is as follows:
“No road shall be ordered to be opened or altered through any burying ground or dwelling house, yard and lawn attached, or orchard, without the consent of the owner. The county court may widen roads already established not to exceed sixty feet in width. Upon written information under oath of the supervisor, or of any two citizens of the county, being filed in the county court at any regular term, to the effect that any public road
The proceeding in question was brought under the foregoing statute: Appellees, Wilson Alexander, Til-ford Alexander and J. IT. G-oggin, filed in the Lincoln County Court a written application asking that the road be widened for the convenience of public travel. Thereupon, E. D. Pennington, H. J. Luce and W. S. Weaver were appointed viewers. They filed a report to the effect that the widening of the road was necessary for the
(1) It will be observed that under section 4301. supra, the viewers are required to report how much of the land will be taken by the proposed change, and to return with their report “a map of the ground viewed showing the proposed change.” It is insisted that neither the report nor the map filed with it furnishes a definite description of the ground to be taken. In this connection it is argued that the report provides for an increase in width on what is known on the diagram as the “Sycamore End,” a distance of 4 feet, 10 inches,, and that no point on the map is designated as Sycamore End. It is, therefore, argued that there is nothing on the diagram to show the initial point from which all the measurements run. While it is true that no point on the map is designated as the “Sycamore End,” yet the report shows that at that point, wherever it may be, the road should be widened 4 feet 10 inches, “making same at said point a width of 29 feet, 10 inches. ’ ’ At the beginning the map does show a width of 29 feet, 10 inches, together with the course of this line, and all that is necessary in order to find the exact width of the land proposed to be taken at that point is to run back from the end of the line, the distance of which is designated as 29 feet, 10 inches, to a distance 4 feet, 10 inches on the course given. From this beginning point two lines were run; one following the line on the old road, the other on apn
(2) But it is insisted that Avhile this is nominally a proceeding to widen a road, it is in effect a proceeding under section 4289, Kentucky Statutes, to change a road, and as no notice was given pursuant to section 4290, Kentucky Statutes, the court was without jurisdiction, and should have sustained appellant’s motion for a peremptory. This contention is based on some evidence to the effect that part of the old road would have to be elevated and a new road made. We do not think, however, that these facts are sufficient to constitute a substantial change in the road so as to make section 4289 applicable. The road in question was simply widened at one end 4 feet, 10 inches, and at the other 14 feet, 6 inches. The ground to be taken was higher than the roadbed. In such a case the new ground may be cut down to the level of the old road, or the old roadbed may be raised so as to conform to the level of the new land. In either event there is simply a widening of the old road. Were the rule otherAvise it would be practically’ impossible to widen a road under the statute, if it Avas necessary to raise or lower the roadbed.
(3) The evidence shows that about 16 families or more with their children lived on the south side of Hanging Fork Creek. For three or four months out of the year this creek at the point where road No. 21 crosses is impassable. By widening the old road a bridge may be thrown across the creek which will afford those people living on the south side access to the other side, and an opportunity to travel a good road for the purpose of going to the postoffice and voting places and of attending church and school. In its instructions the trial court submitted to the jury the question of the necessity of the bridge in question, and as the power of determining the necessity for a bridge is vested in the fiscal court, it is insisted that the court erred in submitting that question to the jury. While the jury had the right to take into consideration all the surrounding facts and circumstances in passing on the question Avhether or not the road should be widened for the convenience of public travel, it was not, of course, within their power to pass'
Judgment affirmed.