Hamby v. City of Dawson Springs

• Decision Date: 10 September 1907
• Citation: 126 Ky. 451,104 S.W. 259
• Parties: HAMBY ET AL. v. CITY OF DAWSON SPRINGS ET AL.
• Court: Kentucky Court of Appeals

104 S.W. 259

126 Ky. 451

HAMBY ET AL. v. CITY OF DAWSON SPRINGS ET AL.

Court of Appeals of Kentucky.

September 10, 1907

Appeal from Circuit Court, Hopkins County.

Suit by Stacey Hamby and others against the city of Dawson Springs and others. From an order refusing to dissolve an injunction defendants applied to a judge of the Court of Appeals to modify or dissolve the injunction. Motion overruled.

William H. Yost, for plaintiff.

Jonson & Jennings, for defendant.

HOBSON J.

The plaintiffs own a lot in the city of Dawson Springs, in which there is a valuable well known as the "Hamby well," from the water of which are manufactured the Dawson salts. The water from the well is also used by the guests at the Hamby Hotel, and has acquired considerable reputation for its curative properties. The plaintiffs enjoy a valuable royalty from the well by reason of its being used for the making of Dawson salts and by persons drinking the water for their health. The plaintiffs' lot fronts on Main street. Their well is near the street. The defendants are about to put down a well in the street within 1 1/2 feet of the edge of the pavement on the west side, 21 feet east of the well, and just opposite it. They have put down a number of wells in the street, but, failing to strike the vein of water that supplies plaintiffs' well, they began to put down the well opposite it, when this suit was filed enjoining them from putting down the well. The circuit court refused to dissolve the injunction, and this application is now made to me as judge of the Court of Appeals to modify or dissolve the injunction.

Hamby did not convey to the town the fee in the street. He simply opened the street and the Legislature established the town. He acquiesced in the act of the Legislature. The town thus took the street, but it took nothing but the street, with such rights as were fairly included in the grant of a street. The defendants first put down a well about 98 feet from Hamby's well. Then they put down another 59 feet from it. Then another 36 feet from it. They then began the well in controversy. In all the wells they put down they struck water. Before these wells were dug, there were a number of other wells furnishing all the water for ordinary purposes that the town required. The facts therefore show that the defendants were not seeking to obtain water merely, but to obtain Hamby's water. In other words, Hamby's well which is valued at something like $50,000, was attempted to be made valueless to him by the opening of a well 21 feet from it, which would be free to all and supply the same water. The grant by Hamby of the street to the town carried with it no such right. In 27 Am. & Eng. Encyc. of Law, p 148, the rule is thus stated: "As a general rule the public has only an easement in the streets, the fee remaining in the landowner, subject merely to the right of the public to the use of the street for street purposes." In Elliott on Roads and Streets, § 17, it is said: "The right of the public in a street is by no means confined to the surface of the way, and this all who set apart land for a street are conclusively presumed to know. 'Street' means more than the surface. It means the whole surface, and so much of the depth as is, or can be, used, not unfairly for the ordinary purpose of a street. It comprises a depth which authorizes the urban authority to do that which is done in every street, namely, to raise the street, and lay down sewers, for at the present day there can be no street in a town without sewers, and, also, for the purpose of laying down gas or water pipes. 'Street' therefore includes the surface and so much of the depth...