Jones v. Avondale Heights Company for Use

• Decision Date: 22 March 1932
• Citation: 243 Ky. 135
• Parties: Jones v. Avondale Heights Company for Use, Etc.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 135

Jones v. Avondale Heights Company for Use, Etc.

Court of Appeals of Kentucky.

Decided March 22, 1932.

1. Highways. — County court order abandoning part of highway previously accepted as part of county highways previously accepted as part of county highway's system operated to revert to abutting owners abandoned portion of highway (Ky. Stats., sec. 4302).

2. Highways. — When county court abandoned portion of road accepted as county highway, abutting owners had right to close abandoned portion (Ky. Stats., secs. 4295, 4302).

3. Highways. — When establishing or discontinuing road, county court is court of limited jurisdiction, and jurisdictional facts must affirmatively appear (Ky. Stats., secs. 4295, 4302).

4. Highways. — County court's order altering, establishing, or abandoning road before process has been issued against owners along road is void (Ky. Stats., secs. 4295, 4302).

5. Highways. — Notice requirement of statute permitting discontinuance of portion of county highway held satisfied where abutting owners signed petition to discontinue (Ky. Stats., sec. 4301).

6. Highways. — Pendency of circuit court action to enjoin abutting owners from closing of portion of width of highway held not to deprive county court of jurisdiction to order abandonment of such portion (Ky. Stats., secs. 4295, 4301, 4302).

7. Covenants. — Subject to certain exceptions, covenant of general warranty is not breached until there is eviction.

There are exceptions to this rule, such as where grantor is insolvent or nonresident or guilty of fraud, or where vendor is not in possession at time of conveyance and his vendee has sued for recovery of possession and has failed to recover.

8. Covenants. — One cannot recover for breach of covenant of general warranty unless averring and proving eviction or exception to rule requiring eviction before general warranty is breached.

Appeal from McCracken Circuit Court.

EATON & BOYD for appellant.

WHEELER, WHEELER & SHELBOURNE for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

The Avondale Heights Company owned a tract of land comprising 300 or 400 acres, lying north of the city of Paducah, McCracken county, Ky., which it platted and subdivided into lots and streets. As originally platted, Block C, lying between Forty-First street and Forty-Second street was several hundred feet deep, through the center of which was a 20-foot alley. Block C lies immediately south of Pine road, one of the main roads of the county. Forty-Second street extends north and south and bisects one of the principal streets of the block. At the west terminus of Forty-Second street, and to the north from Central avenue, is Forrest avenue. Forty-Second street represents the extreme west end of the property subdivided. It was originally platted to be 100 feet wide. The owners of the land, after the sale by the Avondale Heights Company, decided the depth of the lots rendered them unsuitable for building purposes. They replatted block C, with the consent of the Avondale Heights Company. By the replat the property fronting on Forty-Second street was given 20 feet off the rear of the lots, parallel with the alley, running through the center of the block. The owners of the lots fronting on Forty-Second street gave 20 feet off the rear of their lots, and parallel to the alley running through the center of the block, thus making the alley a 60-foot street through the center of Block C, which was designated "Jennings" street, leaving the lots fronting on Forty-Second street extendeding back to Jennings street 245.7 feet by 50 feet.

A proceeding was instituted in the McCracken county court to close 40 feet on the east side of Forty-Second street, so as to make it 60, instead of 100, feet wide.

An action was filed in the McCracken circuit court against the Avondale Heights Company by the owners of the land immediately west of Forty-Second street, to enjoin the closing of any portion of Forty-Second street. The Avondale Heights Company filed an answer, declaring that it did not own any property fronting on the east side of Forty-Second street, and disclosed the names of the parties who owned it. The action, without the owners of the property being made parties, proceeded to judgment which enjoined the Avondale Heights Company from closing any portion of Forty-Second street. An appeal therefrom was brought to this court; the judgment was reversed, with directions. Avondale Heights Company v. Rhodes, 223 Ky. 409, 3 S.W. (2d) 774. On a return of the case to the circuit court, the appellant here and Belle and Covington and others who owned the property on the east side of Block C were made parties defendants. On again being submitted for trial, a judgment was entered against them, enjoining the closing of any portion of Forty-Second street.

The county had not expressly or impliedly accepted Forty-Second street as a county highway. To induce the county to accept it, the appellant and other citizens, formally requested the county court to accept it as a part of the highway system of McCracken county. It was by an order of the county court so accepted as a county highway. This procedure was authorized by secton 4301, Ky. Stats. Thereafter the appellant and others filed in the county court a petition asking it to abandon 40 feet of Forty-Second street as a highway, which was done by an order of that court. The authority of a county to abandon by discontinuance of a public highway, in...