Bradbury v. Walton

• Decision Date: 11 March 1893
• Parties: BRADBURY v. WALTON et al.
• Court: Kentucky Court of Appeals

21 S.W. 869

94 Ky. 163

BRADBURY v. WALTON et al.

Court of Appeals of Kentucky.

March 11, 1893

Appeal from circuit court, Mason county.

To be officially reported.

Action by James G. Bradbury against John W. Walton and others to recover for an alleged wrongful closing by defendants of a highway running over plaintiff's land. There was judgment for defendants on a demurrer to the complaint, and plaintiff appeals. Affirmed.

E. W Hines, Cochran & Sons, and T. C. Campbell, for appellant.

E. L Worthington and Garret S. Wall, for appellees.

PRYOR J.

The contention by the appellant in this case is that the statute authorizing the county court to close lateral roads, or what is known as "ordinary highways," when running within a certain distance of a turnpike road, (one mile,) is unconstitutional. It appears from the petition filed, in which it is alleged that the closing of a lateral road by the defendants was an interference with the right of the appellant to pass from one part of his land to another, that the road had been ordered closed by the county court of Mason in a proceeding under chapter 110 of the General Statutes, to which the appellant was a party, and that he appeared in that court and resisted the motion. It seems to us that proceeding must bar the recovery of the appellant in this case. The appellees closed the highway on their own land, and by virtue of the judgment of the county court, and until that order is reversed it is binding on both the public and the appellant. It is argued, however, that the act is unconstitutional, and if so, the judgment of the county court is a mere nullity and, if this view of the question was conceded, with the broad and almost unlimited power of the county courts over the highways of the state within their jurisdiction, it must be held that a proceeding to close, alter, or discontinue a public road, with the party complaining a party to that proceeding, and a judgment entered, such a judgment must be deemed conclusive so long as it remains in force. The appellees closed the road on their own land, and therefore no trespass was committed by an entry on appellant's land and unless the latter had some right of property in this easement, not only on his own land, but on the land of the appellees, no action can be maintained by reason of the wrong complained of. The public highways of the state known as "county roads" are opened and maintained for the public, and not for mere individual, use; and whenever it may be deemed proper to close, alter, or discontinue a county road the power is given to the county court to make such changes as may be conducive to the public welfare, and the right to close a highway that affects the travel on a turnpike is expressly given the county court, to be exercised only when the public good requires it, and of this the county court must be the exclusive judge, and its action only subject to review by some higher tribunal. It was to encourage the construction of better and more permanent...