Husband v. Cotton

• Decision Date: 26 September 1916
• Citation: 188 S.W. 380,171 Ky. 177
• Parties: HUSBAND ET AL. v. COTTON.
• Court: Kentucky Court of Appeals

188 S.W. 380

171 Ky. 177

HUSBAND ET AL. v. COTTON.

Court of Appeals of Kentucky.

September 26, 1916

Appeal from Circuit Court, Spencer County.

Action for mandatory injunction, etc., by J. W. Husband and others against Richard Cotton. Judgment for defendant, and plaintiffs appeal. Reversed, with instructions to chancellor to set aside the judgment dismissing the action and to grant the prayer of the petition.

Samuel K. Baird, of Louisville, for appellants.

Willis Todd & Bond, of Shelbyville, for appellee.

MILLER C.J.

Early in 1905 the plaintiff J. W. Husband and 15 other landowners in Spencer county signed the following agreement:

"We the undersigned, do hereby agree to give the right of way 30 feet wide over our lands for the construction of the Little Mt. and Van Buren turnpike, without any consideration; and, we further agree that said turnpike company may use the rock on our lands for the construction of said pike free of any charge; said rock to be moved at season of the year when it will do least damage to our premises."

For the purpose of constructing the proposed turnpike, McGee, Husband, and Goodwin, three of the landowners who had signed the agreement above set forth, organized the Little Mount & Van Buren Turnpike Road Company on July 6, 1905, by executing articles of incorporation, in the usual way. The capital stock of the corporation was fixed at $4,000, represented by 160 shares of $25 each; and the third article recited that the business to be transacted by the corporation should be the construction of a turnpike road between designated points, and by a specified route.

The fifth article set forth the names of 33 stockholders and their respective stock subscriptions. Many of these subscribers for stock, but not all of them, had signed the original landowners' agreement, donating the right of way.

The sixth article provided that the corporation should commence business on September 1, 1905, and continue for five years.

The seventh clause provided for the officers usual in such cases; the eighth limited the company's indebtedness to $2,000; and the ninth exempted the private property of the stockholders from liability for corporate debts.

The appellee Richard Cotton signed the landowners' agreement donating the right of way, and subscribed for four shares of stock in the corporation. By a written contract made on November 2, 1907, the Little Mount & Van Buren Turnpike Company employed Cotton to construct certain designated portions of the proposed turnpike, at the rate of $1,000 per mile to be paid by the company. The county had agreed to contribute to the expense of constructing the turnpike to the extent of $500 per mile; and the turnpike company's contract with Cotton provided that 75 per cent. of its liability to Cotton should be paid as the county received each one-quarter mile of constructed road, and the remainder was to be paid when the contract should be completed and the road received by the county. Under the contract Cotton constructed 226 rods of the road, for which he was entitled to receive $707.67. The county paid Cotton $377.82, which was all, or more than all, of the county's proportion of the debt. This sum paid by the county, when added to the sums paid by the turnpike company, and charging Cotton with his stock subscription of $100, made a total credit of $512.33, leaving a balance of $195.34 due Cotton. Other contractors built the remaining portions of the road, which was about six miles long. About one-third of the 226 rods of road constructed by Cotton was upon the right of way donated by Cotton; the remaining two-thirds was on the land of other farmers. The county accepted Cotton's work and paid him in full for its share thereof, as above stated; but the turnpike company refused to accept the work as having been completed according to the specifications of the contract, claiming that the work was defective in some six or seven minor respects. Upon the failure of Cotton and the turnpike company to effect a settlement, Cotton inclosed that portion of the road which he had constructed upon his own land--about 58 rods in length--by putting gates across either end thereof; and it has so remained closed and in Cotton's possession for the past seven years.

On August 2, 1914, the appellant J. W. Husband and 10 of the signers of the landowners' right of way agreement brought this action against Cotton, seeking the enforcement of said contract, and praying for a mandatory injunction, requiring Cotton to open that portion of the turnpike which had been constructed over his land. To this petition Cotton demurred specially, upon the ground that the Spencer circuit court was without jurisdiction of the matter set up in the petition; and he also filed a general demurrer to the petition. The court overruled both demurrers, whereupon Cotton filed an answer, which is substantially a traverse of the allegations of the petition, admitting, however, that he retained possession and control of that portion of the road which had been constructed upon his land, and declaring that he purposed to retain control of it until he had been paid $195.34, the balance due him. Upon a trial, the court dismissed the petition, and the plaintiffs appealed.

Cotton insists that the appellants have no cause of action, and that if any cause of action exists, it is in the county and not in the appellants, who are suing as individuals. In support of this contention counsel for Cotton state in their brief that he filed a special demurrer upon the ground that the plaintiffs had no right to sue. In this, however, counsel are mistaken, since the special demurrer raised only the question of the jurisdiction of the Spencer circuit court, which is an entirely different ground of special demurrer. See Civil Code, § 92, subsecs. 1, 2. The only question raised by the special demurrer was the jurisdiction of the court over the subject of the action; and, as that court clearly had jurisdiction of the subject-matter, the special demurrer was properly overruled.

The disposition of the general demurrer and the case upon the merits presents a question of more difficulty. The pleadings and the proof show without contradiction, that the road was constructed according to specifications provided by the county; that the county contributed to its cost in consideration of the agreement of the turnpike company that the road should be surrendered to the county as and for a public highway, upon its completion; that the county has paid Cotton all it owed him; and that the entire road has been accepted by the county and treated as a public highway, by allotting hands to work it, since 1908. It had not, however, been able to take possession of the 58 rods in controversy, or work that portion of the road, on account of Cotton's hostile attitude. The turnpike company is not claiming any interest in the road, and manifests no concern over this controversy. The right of way was not only a valid contract, but it is now an executed contract. By its terms, the contract dedicated the 58 rods of the road in question to the public use as a highway, and the dedication has been accepted by the construction of the contemplated road, in accordance with the intention and purpose of all the interested parties. The title to the right of way has passed from all the owners of the land. Cotton has no greater interest in the 58 rods of road located upon his farm than he has in a like proportion of the road located upon the land of some other donor of the right of way. He has as much right to hold any other portion of the road constructed by him as he has to hold this 58 rods. His debt of $195.34 is the unsecured obligation of the turnpike company, and is collectible like other simple debts.

The claim urgently pressed in the proof, but not relied upon in the answer, to the effect that the turnpike company paid all the other contractors, is without funds, and has quit business, is wholly irrelevant.

In "holding the road for his money," to use his own language, Cotton is obstructing a public highway; and his defense to this action to abate the obstruction is that the county only can complain. We do not so understand the law. The fact that the county as the owner of the highway may complain does not necessarily prevent the appellants from also complaining. As a general rule, a private person can bring an action to abate the unlawful obstruction of a public way only when he has sustained special damage thereby, different not merely in degree, but in kind, from that suffered by the community at large. 37 Cyc. 250.

The record shows that the defendant Cotton has obstructed this highway in such a way as to require the plaintiffs, who are landowners in the immediate vicinity, to travel by a circuitous route. It is not made to appear how near the lands of these plaintiffs lie to the obstructed portion of the road, although it does appear that in their ordinary travel the plaintiffs are required to go by a circuitous route and over an inconvenient and hilly dirt road, while they could travel upon the turnpike through Cotton's land except for his unlawful obstruction thereof. This state of facts presents several interesting legal propositions.

The first question that presents itself is, Does the fact that one is prevented by an unlawful obstruction from using a highway cause him a special damage which will sustain an action by him against the wrongdoer? Usually a traveler upon a highway does not suffer special damage sufficient to support a private action by reason of an obstruction in the highway which merely causes delay in his journey or compels him to take a more circuitous route, or deprive him of his journey altogether, the injury being to all who attempt...