Greenup County v. Maysville & B.S.R. Co.

• Decision Date: 09 February 1893
• Citation: 21 S.W. 351
• Parties: GREENUP COUNTY v. MAYSVILLE & B. S. R. CO.
• Court: Kentucky Court of Appeals

21 S.W. 351

GREENUP COUNTY v. MAYSVILLE & B. S. R. CO.

Court of Appeals of Kentucky.

February 9, 1893

Appeal from circuit court, Greenup county.

Not to be officially reported.

Action by Greenup county against the Maysville & Big Sandy Railroad Company to recover damages for an alleged failure of defendant to restore a highway crossed by defendant to its former condition. From a judgment for defendant, plaintiff appeals. Reversed.

B. E Roe and Ed. F. Dulin, for appellant.

Wadsworth & Son and B. F. Bennett, for appellee.

BENNETT C.J.

By section 12 of an act approved March 4, 1850, the appellee when necessary for the construction of its road, had a right to intersect or cross any road or highway lying in or across its route, or to change the location of a road or highway during the progress of the construction of its road; but it was made imperative upon the appellee to restore the road or highway thus intersected or crossed to its former state, or in a sufficient manner not to destroy its usefulness, etc. The appellant, Greenup county, instituted this action against the appellee to recover damages for its failure to restore a public road that it crossed in such manner as not to destroy its usefulness. A demurrer was sustained to the petition by the lower court, but this court reversed the case upon the ground that the petition set up a cause of action. See opinion, June 6, 1889, (11 S.W. 774.) Upon the return of the case an issue was formed out of chancery, and the case was submitted to a jury to try the question of damages. The court, upon hearing the evidence, instructed the jury to find for the appellee, which was done, and the case was dismissed. The appellant has again appealed to this court.

It is well settled a road or street dedicated to the public must be accepted by the county court or town. Both dedication and acceptance must concur. The acceptance must be by the proper authority, either "upon its records, or by the continued use and recognition of the ground as a highway for such length of time as would imply an acceptance. The use of the road by the public for fifteen years or more, with exercise of power on the part of the county court over it, appointing overseers over it, etc., would constitute it a highway." See Gedge v. Com., 9 Bush, 64; Wilkins v Barnes, 79 Ky. 323. It seems to be settled that a grant of a right of way, and its acceptance by the proper authority, and in...