Chenault v. Collins

• Decision Date: 16 October 1913
• Citation: 155 Ky. 312,159 S.W. 834
• Parties: CHENAULT v. COLLINS et al.
• Court: Kentucky Court of Appeals

159 S.W. 834

155 Ky. 312

CHENAULT v. COLLINS et al.

Court of Appeals of Kentucky.

October 16, 1913

Appeal from Circuit Court, Madison County.

Petition by May Collins and others for change in the location of the turnpike, to which Pattie P. Chenault filed exceptions. A judgment of the county court overruling the exceptions was confirmed on appeal to the circuit court, from which the exceptant appeals. Reversed.

John C Chenault, of Richmond, for appellant.

Burnam & Burnam, of Richmond, for appellees.

HOBSON C.J.

Appellees filed a petition in the Madison county court for a change in the location of the Union turnpike from a point where it intersects the Otter Creek turnpike, about three miles from Richmond, Ky. The proposed change of location is 1,280 feet long, and the purpose of the change is to avoid two railroad grade crossings; the railroad company agreeing to construct the new road according to the plans and specifications prepared by the county authorities, and one of the petitioners, Mrs. Elveree Collins, agreeing to donate the right of way, so that the change would be made without any cost to the county. The court appointed commissioners to view the ground, and they reported in favor of the proposed change.

Mrs Pattie P. Chenault filed exceptions to the report on the following grounds: (1) Her farm lies north of and adjoining the pike proposed to be discontinued, her residence fronting on it, and her farm having been arranged relative to this pike, so that to discontinue it would greatly injure her place. The pike proposed to be discontinued was built over 30 years ago and before she became the owner of the farm. To discontinue the pike would be to deny her an easement and take her property without compensation. (2) No steps required by law were observed before the viewers were appointed, and the proceedings were illegal and void.

The county court overruled her exceptions and ordered the change made. She appealed to the circuit court, which confirmed the judgment of the county court; and from that judgment she prosecutes the appeal before us.

From the map filed in the record it appears that Mrs Chenault's farm is adjacent to the Otter Creek pike, and her egress and ingress over this pike will not be interfered with. By section 4748b, subsec. 6, Ky. St., all turnpikes are now public roads and stand precisely as any other county road.

The county court has the same power to discontinue one of these roads as any other public road. A citizen has no right of property in a public road which is adjacent to his land. If it be true that the turnpike company under its charter could not have made this change without special authority from the Legislature to do so, the Legislature might have conferred this authority at any time, and the authority which the Legislature might have conferred upon the turnpike company it has conferred upon the county court since the turnpike company went out of existence and the pike became a county road. Bradbury v. Walton, 94 Ky. 167, 21 S.W. 869, 14 Ky. Law Rep. 823. A property owner, in the absence of statutory provision, is not entitled to damages on account of the discontinuance of a county road. Cole v. Shannon, 1 J. J. Marsh. 218; Elizabethtown Railroad Co. v. Jackson, 9 Ky. Law Rep. 242. We therefore conclude that the first ground of exception by Mrs. Chenault is not maintainable.

The other exception is based on the ground that proper notice of the proceeding was not given. It seems that the petition was filed and the proceedings had under section 4290, Ky. St. The petition was filed on July 1, 1912, but the act of the General Assembly approved March 18, 1912 (Acts 1912, c. 110), had then taken effect; and it would seem that, the Session Acts not having then been printed, the case was practiced in ignorance of the provisions of this act. Its material provisions on the subject are as follows:

"Sec. 12. When any road is altered, the former road shall be discontinued to the extent of such alteration and no further, and the new one established."

"Sec. 14. No public road shall be established or discontinued, or the location thereof changed, without due notice thereof having been given according to the provisions of this chapter."

"Sec. 16. All notices and advertisements for the establishment, alteration or discontinuance of any road *** shall, unless otherwise provided, be published for at least two consecutive weeks next preceding *** the filing of a petition for the establishment, alteration or discontinuance of a road, at least once in each weeks in a newspaper of general circulation, or if there be no newspaper published in the county then by hand bills posted for fifteen days, one at the court house door and one in five or more other public places in the vicinity of the road or roads affected. It shall be the duty of the county road engineer to do the advertising herein mentioned, and he must file with the county clerk an affidavit showing the manner in which

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