Bevins v. Pauley

• Decision Date: 21 December 1934
• Citation: 257 Ky. 54,77 S.W.2d 408
• Parties: BEVINS et ux. v. PAULEY et al.
• Court: Kentucky Court of Appeals

77 S.W.2d 408

257 Ky. 54

BEVINS et ux. v. PAULEY et al.

Court of Appeals of Kentucky

December 21, 1934

Appeal from Circuit Court, Pike County.

Suit by J. Mont Bevins and wife against Hi Pauley and another. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

L. J May, of Pikeville, for appellants.

E. J Picklesimer, of Pikeville, for appellees.

MORRIS Commissioner.

This controversy involves the claimed right of appellants to close so much of an old county road as crossed their lands in Pike county, after the establishment of state highway No. 82 running from Pikeville to Williamson. The word "highway," as used herein, will apply to the new state highway, and the word "road" will mean the old county road.

It is admitted that the road was a regularly established county road, and its use by the public for more than forty years was proven. As indicated above, the only part of the road now in question is that which crosses over the lands of appellants J. Mont Bevins and wife, and which seems to lie midway between the points where the highway left the road and again took it up. It appears from the proof and from a map filed that the road ran more or less directly, not in anything like a straight line, however, up the mountain to Bent Gap, and was of difficult grade at certain points.

The highway was planned and surveyed prior to 1921, and the engineers thought it better to construct the highway around, rather than directly up, the mountain. The course followed by the highway between the points mentioned above will be set out later.

The road beginning at a point above Bent Branch ran to Bent Gap, through lands at the time of this suit in this order, John Blackburn's, Bill Stanley's, then appellants', for quite a distance, then over the land of Tobe Blackburn, and perhaps others not shown on the map. At a point in the old road as it traversed the Tobe Blackburn farm there was what seems to be a private road furnishing an outlet to the road for Floyd and John Pinson, who lived some distance above Bevins' home.

The road prior to the construction of the highway was the main road for the use of the public, and those living in the neighborhood described, in traveling between Pikeville and Williamson, and since the establishment of the highway, while perhaps not used as frequently, it is nevertheless traveled to some extent by the neighbors to get to the highway. Its convenience and necessity in this respect are clearly established by the evidence.

When the survey was made for the highway it followed the old road for a greater part of the distance, but at the foot of the hills the route was outlined and adopted as indicated, thereby necessitating the acquisition of new rights of way. It required some land of John and Tobe Blackburn and also Bevins and others.

On December 10, 1920, a notice signed by five citizens of Pike county (not one of whom seemingly owned any land near to or in the neighborhood of the lands in controversy) was posted, by which it was announced that on January 3, 1921, the signatories would present to the Pike county court a petition asking a change in the public road "in Pike County, beginning at W. T. Ford's line on John's Creek, at Station No. 457 on the State Highway leading from Pikeville to Williamson, as now surveyed by the county and state road engineers." Then follows the names of the landowners over whose lands the highway would run, and the notice advised that the court would be asked to appoint commissioners "and make all orders and judgments and grant all proper relief in the premises."

Pursuant to the notice a petition was filed on January 3, 1921. The petition is not in the record, its absence being accounted for by the county clerk, who says that after a strict search it could not be found. However that may be, on January 8, 1921, the court entered an order reciting the filing of the petition; reciting that same set forth description of the proposed highway, and that the court had appointed three housekeepers to view the ground over which the highway was to run, to assess such damages to owners and tenants as they might suffer by the building of the highway. The commissioners were also directed to report conveniences and inconveniences, both to individuals and the public; also to report expenses incident to the constructing of the highway. A special commissioner was appointed to prepare and present deeds from landowners for the necessary rights of way. Thereafter, on January 12, 1921, the commissioners made a report which did not set out conveniences or inconveniences to the public or individuals, nor the expense entailed by the new construction, nor in any way comply with the appointing order, except that it advised the court that the defendant there, who happened to be the appellant here, was to be paid the sum of $1,000, for land and fencing and probable damage to trees by acquirement of the right of way. This was their complete report.

No exceptions were filed to this report, and it was confirmed on February 10, 1921. Afterwards the special commissioner executed a deed on behalf of appellant and his wife to the state highway commission.

The foregoing is a fair recital of the orders and proceedings leading up to the completion of the highway some time in 1922 or 1923, and upon which completion Bevins, as he says, acting upon the advice of the county attorney, erected gates across parts of the road traversing his lands; his belief, based upon advice, being that the construction of the highway ipso facto abandoned the road, and that he, being the owner of the land on each side thereof for the distance through his farm became the absolute owner of the road by reversion. Appellant continued to maintain these gates across the road for some eight or ten years without complaint from his neighbors above or below his lands, and it appears from the proof that no complaint was made until some time in 1933, when appellant proceeded to put locks on the gates. Then the controversy arose. Upon complaint the county court appointed John Pinson overseer of the road and he began work thereon, removing the gates. A warrant was issued for appellant J. Mont Bevins, charging him with obstructing the...