Carter v. Griffith

• Decision Date: 05 February 1918
• Citation: 179 Ky. 164,200 S.W. 369
• Parties: CARTER ET AL. v. GRIFFITH ET AL.
• Court: Kentucky Court of Appeals

200 S.W. 369

179 Ky. 164

CARTER ET AL. v. GRIFFITH ET AL.

Court of Appeals of Kentucky.

February 5, 1918

Appeal from Circuit Court, Ohio County.

Proceedings to establish a drain by Finley Carter and others against Willie Griffith and others. From a determination of the circuit court on appeal, petitioners appeal. Reversed and remanded.

Woodward & Kirk and M. L. Heavrin, all of Hartford, for appellants.

W. T Ellis, of Owensboro, and Glenn & Simmerman, of Hartford, for appellees.

CLAY C.

Finley Carter and others brought this proceeding to establish a ditch or drain in the valley of Panther creek in Ohio county. Exceptions were filed by certain landowners, and the trial in the county court resulted in a judgment dismissing the petition. On appeal to the circuit court, the jury returned a finding against the establishment of the ditch, and the petition was again dismissed. The petitioners appeal.

The circuit court instructed the jury as follows:

"1. If you believe from the evidence that the proposed ditch will not benefit the public health, or will not be conducive to the general welfare of the community in which it is to be located, or that the route is not the proper one, or that its construction is not practicable, then in either of said events you should find against the construction of the proposed ditch, and so say in your verdict.

2. On the other hand, if you believe from the evidence that the proposed ditch will benefit the public health, and that the route thereof is proper, and its construction is practicable then you should find in favor of the construction of the proposed ditch, and so say in your verdict."

It will be observed that the first instruction is in the disjunctive form and authorized a finding against the construction of the proposed ditch if the jury believed from the evidence that the proposed ditch would not benefit the public health, or would not be conducive to the general welfare of the community in which it was located, or that its route was not a proper one, or that its construction was not practicable. On the other hand, they were told by instruction No. 2 that if they believed from the evidence that the proposed ditch would benefit the public health, and that the route was proper, and that its construction was practicable, they should find in favor of the construction of the ditch. In other words, a finding in favor of the proposed ditch was not authorized, unless the jury believed that it would benefit the public health.

It is the argument of appellees, the excepting landowners, that as the Constitution only authorizes a taking of private property for a "public use," and as there was no evidence showing that the proposed ditch would benefit the public roads, there was no way in which the proposed drain would constitute a public use, unless it benefited the public health. While it is true that this court in a number of cases has commented on the fact that a benefit to the public health was sufficient to constitute a public use, it has never gone to the extent of holding that a ditch could not be established, unless it actually benefited the public health. While it may be true that in the case of Bennett et al v. Knott et al., 112 S.W. 849, the court approved an instruction authorizing a finding in favor of the establishment of the ditch therein involved, if the jury believed that the construction of the ditch would be a public benefit and utility and conducive to the public health, convenience, and welfare, the appeal in that case was by the excepting landowners, and they could not complain of an instruction which was more favorable than they deserved. It further appears that the court, though approving the instruction, added the following language:

"Whether the ditch was of public utility and benefit to the lands of the parties was a question to be decided by the jury."

It is likewise true that some of the authorities hold that neither public convenience nor public welfare, independent of considerations of the public health, will justify the Legislature in the enactment of laws for the construction of drains. Kinnie v. Bare, 68 Mich. 625, 36 N.W. 672; Hull v. Baird, 73 Iowa 528, 35 N.W. 613; In re Ryers, 72 N.Y. 1, 28 Am.Rep. 88; Burk v. Ayers, 19 Hun (N. Y.) 17. But the more numerous and better considered cases hold that benefit to the public health is not the only purpose for which the drainage power may be exercised, but that reclamation of low or swamp lands for agricultural and other economic purposes is within the proper scope of the governmental function. The courts so holding have proceeded on the broader grounds that it is important to the state and to its citizens as a whole, as well as to individuals whose property may thus be directly affected by charges for benefits, that all the resources of the state shall so far as is practicable be brought to the point of effective service. 9 R.C.L. 626; Sisson v. Buena Vista County, 128 Iowa 442, 104 N.W. 454, 70 L.R.A. 440; State v. Polk County, 87 Minn. 325, 92 N.W. 216, 60 L.R.A. 16, and note; Billings Sugar Co. v. Fish, 40 Mont. 256, 106 P. 565, 26 L.R.A. (N. S.) 973, 20 Ann.Cas. 264, and note; Norfleet v. Cromwell, 70 N.C. 634, 16 Am.Rep. 787. Thus in the case of Head v. Amoskeag Mfg. Co., 113 U.S. 9, 5 S.Ct. 441, 28 L.Ed. 889, it was said:

"The statutes which have long existed in many states, authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole

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