Chesapeake Stone Co. v. Moreland

• Citation: 126 Ky. 656,104 S.W. 762
• Parties: CHESAPEAKE STONE CO. v. MORELAND.
• Decision Date: 11 October 1907
• Court: Court of Appeals of Kentucky

104 S.W. 762

126 Ky. 656

CHESAPEAKE STONE CO. v. MORELAND.

Court of Appeals of Kentucky.

October 11, 1907

Appeal from Circuit Court, Carter County.

"To be officially reported."

Proceedings by C. S. Moreland against the Chesapeake Stone Company to condemn a tramway. From a judgment of the circuit court affirming a judgment of the county court, defendant appeals. Affirmed.

Theobald & Theobald, for appellant.

Henry L. Woods, for appellee.

CARROLL J.

Appellee instituted a proceeding in the Carter county court in the manner provided by an act to amend an act relating to roads and passways, found in Acts 1904, p. 311, c. 126. The county court entered the following judgment: "It appearing to the satisfaction of the court from the report of the commissioners herein that it is necessary for the petitioner C. S. Moreland, to have a private tramway over the lands of the said Chesapeake Stone Company to get her stone from her stone quarry to the Chesapeake & Ohio Railway Company's track, and that from said report, no other evidence being offered, $100 is a reasonable compensation for the land to be taken for the same as hereinafter described and for any damage to adjacent land by reason of said private tramway, it is now ordered and adjudged that the said report of the commissioners be and the same is hereby confirmed; and it is further adjudged that the petitioner, C. S. Moreland, is entitled to the possession of the land as described by said commissioners: Beginning at a post in a wire fence between said Moreland's land and the land of the Chesapeake Stone Company (a stake); thence S. 58 1/4~ W., 462 feet, to a stake; thence_______61 1/2~>> W., 203 feet, to a stake 50 feet north of the center of the Chesapeake & Ohio railway track; thence, beginning at the same wire fence and at a point N. 31 3/4~ E., 20 feet from the first beginning point, at a stake; thence S. 58 1/4~ W., running parallel with said first line, to a stake 50 feet north of the center of Chesapeake & Ohio railway track and to where it strikes the first line--said land being 20 feet in width. The possession of said land is to be for the use herein mentioned--that of a private tramroad. But it is adjudged that, before said land be taken by the petitioner for said purpose, said petitioner shall pay or offer to pay the said Chesapeake Stone Company the sum of $100 for the same." From this judgment the Chesapeake Stone Company prosecuted an appeal to the circuit court, and filed in that court a transcript of the record made in the county court. This record was introduced as evidence, and a witness was introduced who testified that since the proceedings in the county court C. S. Moreland had sold the land upon which the tramway was to be located to the Norton Iron Works Company, reserving the roadway over the land so sold to be used for any purpose she desired. The land sold to the Norton Iron Works Company is between the land of the Chesapeake Stone Company and the land originally owned by C. S. Moreland. There is a stone quarry on the land of C. S. Moreland, and also on that sold by her to the Norton Iron Works Company. No other evidence was introduced by either party. Thereupon the circuit court entered the following judgment: "This cause coming on for trial, and the court having heard all the evidence offered, and the argument of counsel, and being sufficiently advised, orders and adjudges that each and all of the motions and exceptions filed herein by appellant in the Carter circuit court on July 31, 1906, and in the Carter county court on March 3, 1906, be and they are hereby overruled, to which ruling of the court the appellant objected and excepted at the time said rulings were made; and it is adjudged by the court that the appellee, C. S. Moreland, is entitled to the tramroad adjudged by the Carter county court, and the report of the reviewers therein is confirmed. To which judgment of court appellant objected and excepted at the time."

The act provides that "either party may appeal to the circuit court by executing bond as required in other cases within thirty days, and the appeal shall be tried de novo upon the confirmation of the report of the commissioners in the county court or the assessment of damages by said court as herein provided." Section 3. The first objection made by appellant is that in a proceeding under this act the circuit court must do more than confirm the judgment of the county court, as was done in this case; that the proceeding must be determined in the circuit court without reference to what takes place in the county court, and judgment entered in the circuit court fixing or defining the rights of the parties and awarding compensation that shall be paid for the tramway as ordered. It is said that the judgment of the circuit court does not fix or define the rights of the parties, or award compensation, but merely confirms the judgment of the county court. In the disposition of proceedings of this character the circuit court should enter a final judgment fixing the rights of the parties and awarding compensation, without reference to the action taken in the county court. But in substance and effect the circuit court entered as its judgment the judgment of the county court; and, as the judgment of the county court defined with precision the rights of the parties and awarded compensation to be paid before the tramway could be taken possession of, no question can arise as to the meaning and effect of the judgment of the circuit court. The argument of counsel for appellant that the circuit court did not award any compensation is not well taken, because the judgment of the county court, which was adopted by the circuit court, provides in terms that, "before said land shall be taken by the petitioner for said purpose, said petitioner shall pay or offer to pay said Chesapeake Stone Company the sum of $100." It is therefore clear that, under the judgment of the circuit court, appellee cannot take possession of the property until the compensation allowed has been paid.

A more serious question is presented in the contention that the act of 1904 is unconstitutional. Under the Revised Statutes adopted in 1852, when it was necessary for a citizen to have a private passway over the land of one or more persons in the county to enable him "to attend courts, elections, a meeting house, a mill or warehouse," he might have a passway condemned and established. The General Statutes adopted in 1873 added to the uses for which a private passway might be established the right to condemn to enable a citizen "to pass from one tract of land to another owned by him, or to a railroad depot most convenient to his residence." By subsequent acts embraced in section 4348, Ky. St. 1903, ferries and steamboat landings were included. By the act of 1904, which is an amendment to section 4348 of the Kentucky Statutes of 1903, the uses for which private ways might be condemned was again extended, so as to allow the establishment of "a private tramroad or haul road over the land of one or more persons to enable him to reach a warehouse, steamboat landing, ferry, railroad switch, or navigable stream, for the purpose of marketing the products of a lead mine, iron works, salt works, coal mine, fire clay, and other minerals, oil wells, stone quarry, sand bank, or merchantable forest timber." This section also provides that "nothing in this act shall operate to give any person, firm or corporation exclusive use of such passage; but any other person, firm or corporation shall have the right to use the same upon paying proper compensation therefor; if no agreement can be made for such compensation, then the right to such use may be condemned as herein provided." It will thus be seen that the Legislature has gradually been enlarging the uses for which private property may be taken. Our Constitution does not define what is "public use," merely providing in section 242 that "municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by them"; and this provision was in substance in each of the preceding Constitutions, and may be found in the Constitution of nearly all the states of the Union.

Under these constitutional provisions it is said by Judge Cooley in...