Curlin v. Ashby
| Decision Date | 05 February 1954 |
| Citation | 264 S.W.2d 671 |
| Parties | CURLIN, Com'r of Highways, et al. v. ASHBY. |
| Court | United States State Supreme Court — District of Kentucky |
J. D. Buckman, Jr., Atty. Gen., C. J. Waddill, John C. Talbott, Asst. Attys. Gen., for appellants.
Arthur T. Iler, Central City, Hubert Meredith, Greenville, for appellee.
The Department of Highways has appealed from a judgment of $7,500 based on a jury's verdict in favor of the plaintiff, H. L. Ashby, for damages to his land and crops. Plaintiff's case is predicated upon the charge the Highway Department constructed a fill across his property without providing sufficient outlets for the drainage of the watershed above till fill. It is also alleged that such drainage outlets as were provided were permitted to become obstructed with debris and vegetation. Plaintiff also prayed for a mandatory injunction require the Department to repair the fill as to provide for proper drainage. The court on motion of the Department required him to elect between his action for damages and his request for injunctive relief. He elected to rely on his right to damages.
Plaintiff admits the rule that the state ordinarily is exempt from liability for the negligence of its agents. Constitution of Kentucky, section 231; Hunt-Forbes Construction Co. v. Robinson, 227 Ky. 138, 12 S.W.2d 303; Board of Councilmen of City of Frankfort v. State Highway Comission, 236 Ky. 253, 32 S.W.2d 1008. He relies, however, on the line of cases which hold that where a trespass by the state amounts to a taking of property for public use, the state's immunity from suit is waived.
The first case which expressly permitted recovery against the state for a trespass amounting to a taking of property seems to be Lehman v. Williams, 1946, 301 Ky. 729, 193 S.W.2d 161, although dictum to this effect commenced to appear in some of the cases as early as 1934. Kentucky State Parl Commission v. Wilder, 1934, 256 Ky. 313, 76 S.W.2d 4; Kentucky State Park Commission v. Wilder (second appeal, 1935), 260 Ky. 190, 84 S.W.2d 38; Kentucky Bell Corporation v. Commenwealth, 1943, 295 Ky. 21, 172 S.W.2d 661; Commonwealth v. Tate, 1944, 297 Ky. 826, 181 S.W.2d 418. Later cases directly in point and Commonwealth v. Kelly, 1951, 314 Ky. 581, 236 S.W.2d 695; Keck v. Hafley, Ky. 1951, 237 S.W.2d 527; Department of Highways v. Corey, Ky. 1952, 247 S.W.2d 389. The decisions in these cases were based on section 13 of the Kentucky Constitution, which reads in part: '* * * nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him', and on section 242, which provides: 'Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compesation for property taken, injured or destroyed by them; which compensation shall be paid before such taking * * *.'
Counsel for the Department vigorously insist that these cases are wrong and should be overruled.
Consideration of the cases, especially those based on negligence of the Commonwealth's agents, leaves us with gave doubt as to their soundness. We note that in Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161, the first case expressly permitting this type of action, the decision was placed squarely on an actual taking of property and the issue of negligence was not directly involved. As was said later in the Hafley case, 237 S.W.2d 527, the court permitted the action on the theory that since the Commonwealth had taken property without a condemnation proceeding, an action by the landowner for compensation was in effect a condemnation proceeding in reverse. In the more recent cases the court has failed to make a distinction between those cases in which there was an actual taking by the state, the negligence being incidental, and those based solely on damage caused by negligence. We note, however, that the distinction has been made in...
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Cary v. Pulaski Cnty. Fiscal Court, s. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR.
...theory that when the acts of the state constitute[ ] a taking of property, the law [implies] an agreement to pay for it.” Curlin v. Ashby, 264 S.W.2d 671, 672 (Ky.1954). Because the obligation is viewed as an implied promise to pay, the action must be brought within five years from the date......
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Stathers v. Garrard Cnty. Bd. of Educ.
...We acknowledge some cases imply the damage or injury to the plaintiff's property must rise to the level of a taking. See Curlin v. Ashby, 264 S.W.2d 671, 672 (Ky.1954) (referencing the “line of cases which hold that where a trespass by the state amounts to a taking of property for public us......
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Cullinan v. Jefferson County
...274 (1909). If property is damaged, either wilfully or through negligence, the court 'implies' a promise to pay. See Curlin v. Ashby, Ky., 264 S.W.2d 671 (1954). The word 'shocking' is well said. It is inexcusable. I rest my case on the proposition stated long ago by one of the greatest hum......
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Stathers v. Garrard Cnty. Bd. of Educ.
...We acknowledge some cases imply the damage or injury to the plaintiff's property must rise to the level of a taking. See Curlin v. Ashby, 264 S.W.2d 671, 672 (Ky. 1954) (referencing the "line of cases which hold that where a trespass by the state amounts to a taking of property for public u......