Department of Highways v. Jackson

• Decision Date: 10 May 1957
• Parties: DEPARTMENT OF HIGHWAYS, Commonwealth of Kentucky, and M. W. Tinder, Commissioner, Department of Highways, Appellants, v. Henry JACKSON et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 373

302 S.W.2d 373

DEPARTMENT OF HIGHWAYS, Commonwealth of Kentucky, and M. W.

Tinder, Commissioner, Department of Highways, Appellants, v. Henry JACKSON et al., Appellees.

Court of Appeals of Kentucky.

May 10, 1957.

Rehearing Denied June 14, 1957.

Jo Ferguson, Atty. Gen., C. J. Waddill, T. W. Johnson, Asst. Attys. Gen., Clyde E. Reed, Smith, Reed & Leary, Frankfort, for appellants.

Burlyn Pike, Shepherdsville, for appellees.

Thomas C. Carroll, Louisville, Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, Huff & Friedlander, Louisville, amici curiae.

CULLEN, Commissioner.

This appeal involves the right of a property owner to recover damages for depreciation in the value of his land as a result of the closing of a county road between his land and a nearby town, so as to require him to travel a greater distance to reach the town.

The Kentucky Turnpike, a limited access toll road, runs north and south through Bullitt County, passing about onehalf mile to the east of Lebanon Junction. Prior to the construction of the turnpike, a county road known as Samuels Road ran east from Lebanon Junction, passing the six-acre farm of Henry Jackson and his wife, which was about one mile east of Lebanon Junction. About three-tenths of a mile east of the Jackson farm, a road known as the Old Pine Tavern Road runs to the north and then around to the west to Lebanon Junction. About twotenths of a mile east of the Jackson farm another road known as the Maraman Road runs to the south and connects with State Highway No. 61, which runs west into Lebanon Junction. The distance from the Jackson Farm to Lebanon Junction, by either the Old Pine Tavern Road or the Maraman Road, is about two miles.

In constructing the turnpike, the Samuels Road was closed at the right-of-way lines of the turnpike (about one-half mile to the west of the Jackson farm), so as to bar travel over this road between the Jackson farm and Lebanon Junction. However, the Department of Highways improved the surface of the Old Pine Tavern Road and the Maraman Road, with the view of making them suitable substitute routes of travel.

The Jacksons brought action against the Department of Highways, seeking damages for depreciation in the value of their farm alleged to have resulted from the closing of the Samuels Road. Upon a jury verdict judgment was entered in favor of the Jacksons for $1,500. The Department of Highways has moved for an appeal. Other interested persons have filed amicus curiae briefs.

The facts in this case are substantially similar to those in Ex parte Commonwealth, Ky., 291 S.W.2d 814, in which this Court held that a property owner on a county road proposed to be closed is entitled to damages only when the closing of the road will deprive him of his sole or principal means of ingress and egress. The Department of Highways maintains that the Ex parte Commonwealth case is controlling here. The appellees, and the amicus curiae, argue that the opinion in the Ex parte Commonwealth case departed from the established law of Kentucky, and should be overruled. They further argue that in Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498, it was held that a landowner has a property right in the continued maintenance of either a county road or a city street passing his land, for impairment of which right he is entitled to damages, and that this is the proper rule of law.

Historically, a distinction has been recognized in Kentucky cases between city streets and county roads, as concerns the right of a landowner to continued maintenance of the street or road. This distinction was noted in the early case of Lexington & Ohio Railway Co. v. Applegate, 8 Dana 289, and was reiterated in Bradbury v. Walton, 94 Ky. 163, 21 S.W. 869. In substance, the two rules arising out of the distinction were (1) that a landowner along a county road had no property right in the continued maintenance of the road, and (2) that a landowner along a city street had a right in the nature of a private easement in the continued maintenance of platted or dedicated streets.

Although the language employed in some of the early cases would lead one to the conclusion that a landowner along a county road had no vested right even to minimum ingress and egress to his land by means of the road, it was made clear in De-Rossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165, 168, that if the closing of the road will deprive the owner of 'reasonable access' to his land, or of reasonably 'convenient ingress and egress,' he is entitled to damages. Again, in Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117, 119, wherein there is a thorough review of the previous cases, it was said, 'Undoubtedly, a property owner may prevent the closing of a county road which deprives him of his sole or principal means of ingress and egress.' Although, in the Wright case, the court was construing the statute then in force with respect to the closing of county roads, and spoke in terms of the right of the landowner to prevent the closing rather than his right to damages resulting from a closing, we think t...