Bank of Hopkinsville v. Western Kentucky Asylum for the Insane

• Court: Kentucky Court of Appeals
• Writing for the Court: WHITE, J.
• Citation: Bank of Hopkinsville v. Western Kentucky Asylum for the Insane, 56 S.W. 525, 108 Ky. 357 (Ky. Ct. App. 1900)
• Decision Date: 25 April 1900
• Parties: BANK OF HOPKINSVILLE et al. v. WESTERN KENTUCKY ASYLUM FOR THE INSANE.

56 S.W. 525

108 Ky. 357

BANK OF HOPKINSVILLE et al. v. WESTERN KENTUCKY ASYLUM FOR THE INSANE.

Court of Appeals of Kentucky.

April 25, 1900

Appeal from circuit court, Christian county.

"To be officially reported."

Action by the Bank of Hopkinsville and the Planters' Bank of Hopkinsville against the Western Kentucky Asylum for the Insane to recover damages for the diversion of water from a stream. Judgment for defendant, and plaintiffs appeal. Reversed.

C. H Bush and J. I. Landes, for appellants.

John Feland, Jr., and Petrie & Downer, for appellee.

WHITE J.

The appellants are the owners of a gristmill on the East fork of Little river, in Christian county, and as such are the owners of the right to maintain a dam across said stream, acquired by condemnation proceedings had in the year 1846. The right thus given to erect and maintain the dam was for the purpose of using the water power thus afforded by the dam in running the mill. The appellee is a charitable institution, owned and conducted by the state, for the care and treatment of its insane citizens. The buildings and grounds of appellee are situated some three-fourths of a mile from Little river, and it owns no land on the river except one acre acquired by its commissioners by purchase, lying on both sides of the river and including the river within the boundary, as it is not a navigable stream. On this acre on the river appellee has erected a pumping station, and by this means pumps out of the river, to a reservoir on the grounds, water as it is needed for domestic purposes, for the use of the inmates of the institution, as well as for the animals used in its work in carrying on the gardening and hauling necessary thereto. There are wells and springs on the grounds of appellee, but in themselves these are insufficient, and it became necessary to go elsewhere for water, and then the acre was purchased. The pumping station of appellee is up the stream from appellants' mill site. Appellants brought this action in the Christian circuit court for damages to the mill property by reason of the diversion by appellee of the water from Little river, and thereby, as is charged, preventing a sufficient flow to run the mill. A demurrer to the petition was overruled, and appellee now insists that this was error. The contention of appellee being that it is a public charitable institution, established and maintained by the state, and its funds come wholly by public taxation collected into the public treasury, and from there distributed to appellee, and being thus an arm of the state government, an action cannot be maintained against it.

The argument of counsel on this question is quite strong and persuasive, but the question is not an open one in this state. In the case of Herr v. Asylum, 97 Ky. 458, 30 S.W. 971, 28 L. R. A. 394, this identical question was fully considered, and there determined adversely to appellee's contention. The commissioners of the asylum are created a corporate body, with power to sue and be sued, without qualification as to the causes of action. This must be held to be legislative consent.

Appelle...