Holmes v. Town of Rochester
| Decision Date | 30 April 1918 |
| Citation | 180 Ky. 362,202 S.W. 871 |
| Parties | HOLMES v. TOWN OF ROCHESTER. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Butler County.
Action by W. S. Holmes against the Town of Rochester. Judgment for defendant, dismissing the petition, and plaintiff appeals. Affirmed.
W. S Holmes, of Rochester, for appellant.
N. T Howard, of Morgantown, for appellee.
Laying aside, as unnecessary to be decided, certain motions of appellee made in this case, it is sufficient to say that the judgment of the lower court must be affirmed upon the ground presently indicated. The action was brought by the appellant W. S. Holmes, seeking to recover of the appellee, town of Rochester, damages claimed to have resulted to him from a trespass alleged to have been committed by its council and servants in removing and setting back the fence on the front of a lot owned by him, situated on Commerce street in the town, and in appropriating and converting to the use of the town, for the construction in part of a concrete sidewalk thereon, a strip of ground about 2 feet in width and 70 feet in length from the front of the lot. Appellee's answer admitted the removal and resetting of the fence and appropriation of the strip of ground in question for the construction in part of the pavement, but denied appellant's ownership of the strip; alleging that it was a part of Commerce street and had been wrongfully enclosed by appellant's building of the fence in question in the attempt to make it a part of his lot; that the strip of ground was required for the pavement; that the construction of the pavement in part thereon was necessary for the proper use of the street by pedestrians resident in the town; and that the pavement was constructed under and by virtue of an ordinance duly enacted by the board of council of the municipality. The foregoing averments of the answer were controverted by the appellant's reply, and by consent of the parties the case was tried by the circuit court without the intervention of a jury. By the judgment rendered the court dismissed appellant's petition and awarded appellee its costs expended in the action. From that judgment the former has appealed.
The only ground urged by appellant for the reversal of the judgment asked is that it is contrary to and not supported by the evidence. The evidence introduced in appellant's behalf conduced to prove the removal and resetting of his fence by appellee and its appropriation of the strip of ground for the use of the pavement complained of; also some part of the damages...
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