Clay City v. Roberts

• Decision Date: 13 February 1907
• Citation: 124 Ky. 594,99 S.W. 651
• Parties: CLAY CITY v. ROBERTS ET AL.
• Court: Kentucky Court of Appeals

99 S.W. 651

124 Ky. 594

CLAY CITY v. ROBERTS ET AL.

Court of Appeals of Kentucky.

February 13, 1907

Appeal from Circuit Court, Powell County.

"To be officially reported."

Action by W. S. Roberts and others against Clay City. From a judgment for plaintiffs, defendant appeals. Reversed.

Jno. D Atkinson, for appellant.

C. F Spencer and Pendleton & Bush, for appellees.

LASSING J.

Clay City is a town of the fifth class, and Red river runs through the town. Some years ago a lumber company operated a planing mill on one side of the river and a sawmill on the other side, and for its convenience in carrying on its business this lumber company built a pontoon bridge across the river. The bridge was used by the lumber company and also by the citizens of the town in general. While the lumber company was in operation, it kept the bridge in repair. Some years ago the lumber company moved away from Clay City, and since that time such repairs as the bridge had were made by the town. Shortly before the institution of this suit the bridge washed away. Some 12 or 14 families, the proof shows, reside on the north side of the river, but the principal part of the town is on the south side. After the bridge washed away and was destroyed, those citizens living on the north side of the river had no means of reaching the south side save by boat and were thus cut off from the public buildings, churches schoolhouses, etc., of the town on the south side. They requested the authorities of the town to replace the bridge, and, they having refused to do so, instituted their suit in the Powell circuit court seeking to compel the town to replace the bridge. The circuit judge, of his own motion, directed that Powell county be made a party defendant. This was done by an amended petition. A demurrer having been filed by Powell county to the petition as amended was sustained, and the petition dismissed as to Powell county, and the suit proceeded against the defendant Clay City alone. The total income of the town was about $1,500 a year, and $1,000 of this was raised from saloon licenses, and at the date of the trial in the circuit court there was a deficit in the town treasury of something like $300. The trial judge directed the trustees of the town to cause a bridge, or other contrivance, to be built across the river, at or near the point where the pontoon bridge crossed the river, the structure to be substantially as safe and convenient as the pontoon bridge was when it was in reasonably good repair. From this order and judgment, the town appeals.

Appellees insist that by section 3643, Ky. St. 1903, the town council is empowered to reconstruct this bridge, and upon a showing that it was a public necessity it was their duty to do so, and that the fact that the town had kept the bridge in repair after the lumber company had moved away from the town was an evidence that the town had accepted the bridge and made it a part of its public highways. It is true that the town had, after the lumber company had ceased to be operated and had abandoned the bridge in question, kept its approaches in repair, and perhaps made some repairs to the bridge itself. But the proof on this point is not sufficient to warrant the conclusion that the town had accepted this bridge as a part of its thoroughfares. There is no proof showing the width of Red river at the point where it was crossed by this bridge, nor is there anything in the record in this case to give even an idea of what the cost of bridging the river, even with a pontoon bridge, would be. It has been held in the case of Leslie County v. Wooten, etc., 75 S.W. 208, 25 Ky. Law Rep. 217, that where a bridge which had washed away formed a part of a county road, it was the duty of the fiscal court to rebuild it, under section 1840, Ky. St. 1903, and that upon their refusal to do so, a mandamus would lie to compel them to rebuild it, it being shown that the bridge was over a stream on a much-traveled road. And in the case of Trustees of Elizabethtown v. Hardin County, a manuscript opinion filed in February, 1877, this court said: "Regarding the county court as controlling the road like any other public highway in the county, it is still certain, from the admitted facts, that this bridge is indispensable for public use, or at least made necessary by the wants of the public. It is on the principal thoroughfare traveled by one portion of the inhabitants of the county in going to, and returning from, the county seat and the railroad depot. It is a bridge constructed on a highway 70 feet long, and essentially a county bridge. The county court is required by statute to erect such structures on its public ways when required for public use." And the court directed this bridge to be rebuilt by the county. In the case of Commonwealth v. Boone County, 82 Ky. 632, a...