Cole v. Shannon

• Decision Date: 16 April 1829
• Citation: 24 Ky. 218
• Parties: Cole and O'Harra v. Shannon.
• Court: Kentucky Court of Appeals

24 Ky. 218

Cole and O'Harra v. Shannon.

Court of Appeals of Kentucky.

April 16, 1829

Franchise. Highway. Discontinuance of a Road. Appeal. Writ of Error. County Court.

APPEAL FROM THE WOODFORD COUNTY COURT.

Haggin and Talbot, for appellants.

Monroe and Marshall, for appellees.

OPINION

ROBERTSON JUDGE:

After the publication of notice, the county court of Woodford, at the instance of David A. Shannon, discontinued the road in said county leading from the Leestown road, to Coles ford which had been established many years. The road was established no farther than to the margin of Elkhorn, at the ford.

Unless a person have some franchise freehold, or exclusive interest affected, he can not question the order of the county court discontinuing a road.

Cole and O'Harra, who are represented by the record, as the proprietors of the land on Elkhorn, opposite to the termination of the road, objected to the occlusion by the county court, and have appealed from the order, to this court.

The case comes up for decision, on a motion to dismiss the appeal on the ground that the appellants have no right to prosecute it.

Unless the appellants have some peculiar and exclusive interest, which has been affected, they have no right to question the act of the county court, by appeal or writ of error. Unless some franchise, or freehold to which they were entitled, can be shown to be violated by the order, they have no more right than any other citizens, to complain. The road did not, from anything appearing in the record, pass through their land; and therefore the only loss to them, which can ensue from the order, is the obstruction of the right of way, which was common to them and all others. The inconvenience resulting to them, may be greater, than that which others may experience; but it is not the degree, but the kind of damage which gives the right to ask a reversal of the order.

We need not decide whether the appellants could appeal, if the road had passed through their lands. Nor is it proper, now to decide, whether there can be any redress for the discontinuance, by a county court, of an established road. We have no doubt that there ought to be some remedy, for any abuse of the power to discontinue roads. It may be exercised without any good reason, and may be perverted to the great prejudice of individuals.

Nor have we any doubt, that if the appellants had any right to make themselves parties to the record, they might appeal, as well as prosecute a writ of error. They could not sue out a writ of error, unless some private right of theirs were affected. If any such right exist, it is a franchise or freehold, which would bring them within the letter of the act of assembly, authorizing appeals.

But the interest exhibited by the record, is not such as will entitle them to a revision, by this court, of the order of the county court.

For this reason alone, the appeal is dismissed.

OPINION OF THE COURT UPON A RE-HEARING.

ROBERTSON JUDGE.

This case had been argued before our predecessors, who had not decided it. It was submitted to us, without argument. After the opinion was delivered, it was suggested by the counsel that it had been admitted on the hearing before the former judges, that Cole and O Harra owned the land through which a part of the road passed. And thereupon the court, at the instance of the counsel for Cole and O'Harra, directed a re-hearing. The only question which was to be considered on the re-hearing and of course the only one which is now to be decided is, whether the owner of the land through which a public road passes, can prosecute a writ of...