Kentucky State Park Com'n v. Wilder

• Decision Date: 13 November 1934
• Citation: 256 Ky. 313,76 S.W.2d 4
• Parties: KENTUCKY STATE PARK COMMISSION v. WILDER et al.
• Court: Kentucky Court of Appeals

76 S.W.2d 4

256 Ky. 313

KENTUCKY STATE PARK COMMISSION v. WILDER et al.

Court of Appeals of Kentucky

November 13, 1934

Appeal from Circuit Court, Whitley County.

Action by Samantha Wilder and others against the Kentucky State Park Commission and others. From a judgment overruling a special demurrer of the named defendant, named defendant appeals.

Reversed with directions.

Bailey P. Wootton, Atty. Gen., and F. M. Burke, Asst. Atty. Gen for appellant.

Stephens & Steely and E. L. Stephens, all of Williamsburg, and R. L Pope, of Harlan, J. B. Johnson and W. B. Early, both of Williamsburg, for appellees.

CREAL Commissioner.

On January 29, 1931, the Cumberland River Power Company, a corporation, conveyed to the commonwealth of Kentucky, for the use and benefit of the Kentucky State Park Commission hereinafter called the park commission, a boundary of nearly 600 acres of land in Whitley and McCreary counties made up of five different tracts and known as the Cumberland Falls property. The deed contained a stipulation which, so far as pertinent, reads:

"Provided that this conveyance is made upon the express condition that Cumberland Falls shall be preserved in its existing state, and that the property herein conveyed shall be used by second party as an exclusively State owned and State controlled park, and for State Park purposes exclusively. ***"

Thereafter, Samantha Wilder and other persons instituted this action against the park commission and a number of individuals alleging that they and the individuals named as defendants as heirs of Mary Farris, W. B. White, and Henry D. Harmon were the joint owners of an undivided 49/50 of a 200-acre tract included in the lands described in the above-mentioned conveyance. They further alleged, in substance, that the tract in controversy cannot be partitioned among the several parties in interest without materially impairing the value thereof as a whole as well as the value of the share of each party having an interest therein. The prayer of the petition is for a sale of the lands and for a division of the proceeds among the parties as their several interests may appear.

The Attorney General in behalf of the park commission and the commonwealth filed a special demurrer on the ground (1) that the court had no jurisdiction of the defendant, the park commission, or of the subject-matter of the action and (2) that there is a defect of parties defendant. The case is here on appeal from a judgment and order overruling the special demurrer.

It is the theory of the Attorney General that, while the park commission is named defendant, the action, to all intents and purposes, is a suit against the state and that such an action is not authorized in the absence of express authority conferred by the General Assembly.

Section 3, chapter 144, Acts of 1930 (Kentucky Statutes, § 2337a-2, 1933 Supplement), provides:

"The Commonwealth of Kentucky shall hereafter be named as the grantee of any and all land or any interest in land conveyed to it or for its use or for the use of any of its departments, boards, agencies, commissions or any of its officers, or to any and all land which is wholly or in part paid for out of State funds, or which it acquires by gift or devise."

The Act of 1926 (Ky. St. § 3766d-1 et seq.), creating the park commission and defining its powers and duties, provides in effect that it should take and hold property for the purposes of the state and not otherwise and that such property should be held in trust for the use and benefit of the commonwealth for public park purposes.

The Act of the General Assembly of 1930 (Ky. St. § 3766e-23 et seq 1933 Supplement), authorizing the acquisition of the site of Cumberland Falls and lands adjacent thereto for the purpose of preserving Cumberland Falls in its existing state as an essential part of a state park, provides that the title should be acquired for the state, and, when so acquired, the property should be placed under the jurisdiction of the commission for administration by it as an exclusively state owned and state controlled park. It will therefore be seen that not only was the conveyance made directly to the commonwealth, but that under the statutes hereinbefore quoted and referred to, the title to the land in controversy vested in the commonwealth to be held and used for public purposes. It is also...