Carrico v. Calvin

• Decision Date: 10 December 1891
• Citation: 92 Ky. 342,17 S.W. 854
• Parties: Carrico et al. v. Calvin et al.
• Court: Kentucky Court of Appeals

17 S.W. 854

92 Ky. 342

Carrico et al. v. Calvin et al.

Court of Appeals of Kentucky.

December 10, 1891

Appeal from circuit court, Hardin county.

"To be officially reported."

Proceeding by L. D. Calvin and others against R. B. Carrico and others to condemn lands for a public road. Judgment for plaintiffs. Defendants appeal. Reversed in part.

Bennett J.

Appellees applied to the Hardin county court to open a public road over the land of the appellants in a certain part of Hardin county. The viewers' report, recommending the opening of the road, was adopted by the county court, and the verdict of the jury assessing the damage to appellants' land was sustained, and judgment was rendered establishing the road and ordering the same to be opened, and allowing the appellants the damage assessed by the jury. An appeal was taken to the circuit court from that judgment, which was affirmed. The appellants then appealed to this court. The judgment of each court is to the effect that the appellants may be dispossessed of the land condemned, and the road opened, without previously paying the appellants the damage assessed by the jury. The question is, could the appellants' land be taken from their possession for public road purposes without its value having been previously paid to them? Section 14, art. 13, of the old constitution under which this proceeding was had, provided that no man's property should be taken or applied to public use without just compensation being previously made to him. This court in the case of Covington Short Route Transfer Ry Co. v. Piel, 8 S.W. Rep. 449, decided that, where property was condemned for the use of a railroad corporation it could not be taken from the possession and control of the owner and vested in the corporation without his being previously paid in money for the land. But it is said that this case is unlike that, because in this case the property is taken for county purposes, and the pledge of the county, through its authorities, for its payment should be regarded as equivalent to an actual payment previous to the taking of the property; and Gashweller v. McIlvoy, 1 A. K. Marsh. 84, is relied upon as an authority sustaining that view. But the Covington Short Route Transfer Ry. Co. Case disapproves that case, and we, upon further reflection, concur in the disapproval. The provision of the constitution, supra, makes no exception in favor of the state or its subdivis...