Brown v. Roberts

• Decision Date: 06 December 1932
• Citation: 55 S.W.2d 9,246 Ky. 316
• Parties: BROWN v. ROBERTS et al.
• Court: Kentucky Court of Appeals

55 S.W.2d 9

246 Ky. 316

BROWN v. ROBERTS et al.

Court of Appeals of Kentucky

December 6, 1932

Appeal from Circuit Court, McCracken County.

Suit by Frank Roberts and another against William C. Brown. Judgment for complainants, and defendant appeals.

Affirmed.

Jack E Fisher and Henry H. Lovett, both of Paducah, for appellant.

W. Mike Oliver, of Paducah, for appellees.

STANLEY C.

The issue in this case is the right of a citizen to close on his own accord a portion of the state highway where a new road has been constructed in its place.

In rebuilding the state highway between Paducah and Benton known as federal highway No. 68, a curve was eliminated; the old and new roads forming a crescent or a figure something like an Indian bow. The appellant, William C. Brown, owns the property abutting the old and new roads where they join at the north end. The appellee Frank Roberts owns property at the south junction, and the appellee Charles Edwards' property is in the middle and is wholly on the old road. The distance between the two ends of the road is about 1,300 feet, and the greatest width between the old and new roads is about 150 feet. Brown acquired the small triangular parcel in the north end of the bow, which is about 600 feet long and 75 feet at the widest part. He thus owns the land abutting on both sides of the old road. Upon a portion of this old roadbed he purposed to build a residence and to close the road. The appellees have enjoined him from doing so, and he appeals.

The claimed right to close this road is based upon the law that where a highway which has been surrendered or dedicated for the public use is abandoned, the entire title in the roadbed reverts to the adjacent landowners, and that this portion of the highway had been discontinued and abandoned by the establishment of the new road in such close proximity to it and the traffic transferred to the new location. Waller v. Syck, 146 Ky. 181, 142 S.W. 229; Williams v Johnson, 149 Ky. 409, 149 S.W. 821; Henry v. Board of Trustees, 207 Ky. 846, 270 S.W. 476.

Let it be assumed that there was an intention on the part of the public authorities to abandon the old road. Nevertheless it is held that "'once a public road, always a public road,' unless it is abandoned in the manner pointed out by the statutes enacted for the purpose." Mills v. Dawson, 197 Ky. 518, 247 S.W. 764, 766, and the cases therein cited. It is now specifically provided by statute that: "Every public road *** which has not been lawfully discontinued or vacated shall continue as...