Fitzpatrick v. Warden

• Decision Date: 23 January 1914
• Citation: 162 S.W. 550,157 Ky. 95
• Parties: FITZPATRICK v. WARDEN.
• Court: Kentucky Court of Appeals

162 S.W. 550

157 Ky. 95

FITZPATRICK v. WARDEN.

Court of Appeals of Kentucky.

January 23, 1914

Appeal from Circuit Court, Warren County.

Action by W. H. Fitzpatrick against J. A. Warden. From a judgment for defendant in the circuit court on appeal from the county court, plaintiff appeals. Affirmed.

Sims &amp Rodes and Byron Renfrew, all of Bowling Green, for appellant.

Bradburn & Basham, of Bowling Green, for appellee.

MILLER J.

This is a proceeding by Fitzpatrick to condemn a private passway over the land of Warden. It was brought under section 4348 of the Kentucky Statutes, the first and sixth sections thereof reading as follows: "(1) Whenever it shall appear to a county court, that it is necessary for a person to have a private passway over the land of one or more persons to enable him to attend courts, elections, a meeting house, a mill, warehouse, ferry, a railroad depot, most convenient to his residence, or whenever it shall appear to a county court that it is necessary for a person to have a private tram-road 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 operating and marketing the products from a lead mine, iron works, salt works, coal mine, fire clay and other minerals, oil well stone quarry, sand bank or merchantable forest timber, the court shall appoint commissioners, as in case of a road, who, being first sworn to discharge their duties faithfully and impartially, shall go upon the land of the person through which the passway, private tram-road or haul-road is proposed, whether arable or not, and shall report in writing to the court, whether or not a private passway, tram-road or haul-road is necessary for any of the purposes aforesaid; and, if favorable to the passway, private tram-road or haul-road, they shall, in their report, designate the exact route for the same by metes and bounds, course and distances, and the width thereof, which, in no case, shall exceed twenty feet, and they shall determine and assess what will be a just compensation to each owner and tenant, if any, for the land proposed to be taken for a passway, private tram-road or haul-road, in the same manner as upon application to open and establish a new road. *** (6) Provided, that nothing in this act shall operate to give any person, firm or corporation exclusive use of said 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."

Fitzpatrick owns two tracts of land in Warren county, which are separated from each other by an intervening tract of the appellee Warden. The larger tract, upon which Fitzpatrick resides, has an outlet to the Green Hill Public Road. The smaller tract, containing 30 acres, lies southwest of Fitzpatrick's home tract and of the Warden tract, and is bounded upon the west and north by Drake's creek, and on the east and south by a range of abrupt cliffs, having an elevation of from 100 to 150 feet, and rising from the earth at an angle of about 45 degrees. At the south end, however, of this smaller tract, the cliffs do not quite reach the creek, thus leaving a sufficient space for a roadway along the creek, and constituting the only practicable outlet from the 30-acre tract. But in order to use this outlet it is necessary to pass over the intervening land of Warden to the home place of Fitzpatrick, and thence over Fitzpatrick's home tract to the public road. There is no residence or building of any kind upon the 30-acre tract; and on account of its being subject to overflow from Drake's creek, at most any time, it is unfit for residence purposes.

Under these facts, Fitzpatrick instituted this proceeding in the Warren county court to condemn a private passway over the land of Warden, alleging that his 30-acre tract bordered on no public road; that it was necessary for him to have a private passway over the land of Warden to enable plaintiff and those upon his said tract of land to attend courts and elections, a meeting house, a mill, a warehouse, a ferry, and railroad depot more convenient to same, and to operate and cultivate his said tract of land, and to market the products of same at mill, warehouse, and railroad depot. The county court granted the application, and designated a passway from Fitzpatrick's 30-acre tract across the land of Warden to and across the Fitzpatrick home tract, by metes and bounds, as required by the statute; and from that judgment Warden appealed to the circuit court. Upon a trial there the circuit court found, as a fact, that Fitzpatrick had no other practicable outlet from his 30-acre tract except by a passway across the land of Warden as laid out by the county court; but being of the opinion that the use for which Fitzpatrick was seeking the passway was a private use to enable him to pass to and from the 30-acre tract to haul its products to his home place or to the market, and that to grant the passway would be the taking of Warden's property for a private use and not a public use, it dismissed the petition, and Fitzpatrick appeals.

The organic law of the state forbids the taking of private property for the use and benefit of private persons under any state of case; it...