Lawrence County v. Chattaroi Railroad Company

• Decision Date: 05 June 1883
• Citation: 81 Ky. 225
• Parties: Lawrence County v. Chattaroi Railroad Company.
• Court: Kentucky Court of Appeals

Page 225

81 Ky. 225

Lawrence County v. Chattaroi Railroad Company.

Court of Appeals of Kentucky.

June 5, 1883.

APPEAL FROM LAWRENCE CIRCUIT COURT.

G. W. CASTLE FOR APPELLANT.

JAMES E. STEWART AND K. F. PRITCHARD FOR APPELLEES.

CHIEF JUSTICE HARGIS DELIVERED THE OPINION OF THE COURT.

The appellant, Lawrence county, brought this action, by petition ordinary, against the appellee, the Chattaroi Railway Company, alleging that the defendant is a corporation created by an act of the legislature of this state, and so constructed its road as to occupy and destroy the usefulness of two highways which the county had caused to be opened and made within its borders, and on one of which it had erected twenty bridges, at a cost of at least $9,000, which had become wholly useless to the county and the traveling public by reason of the unlawful occupation and destruction of said highways by the defendant to the plaintiff's damage in the sum of $15,000, for which the county prayed judgment.

The defendant demurred to the petition:

First. Because the plaintiff had no legal capacity to sue.

Second. Because the petition did not state facts sufficient to constitute a cause of action.

The court sustained the special and general demurrer, and the county has appealed.

On the first point, whether the county had sufficient capacity to sue, this court held, in the case of Christian County Court v. Rankin & Tharp, 2 Duvall, 503, that an action for the unlawful burning of the court-house could be maintained in the name of the county as a quasi corporation, owning the court-house. The Civil Code, section 18, provides that every action shall be prosecuted in the name of the real party in interest.

When a highway is opened, the lands over which it may be constructed are required to be condemned according to the provisions of the statutes, and the use of the land at once vests in the county for the benefit of the public, and passes from the owners, who cannot resume the use until it is abandoned or surrendered by authority of the county, through its lawfully constituted agents. The common highways, as is alleged with reference to those named in the petition, are generally made by the labor of hands allotted along their routes, and by the impressment of teams, for which the county makes payment by appropriation and allowance at the annual court of claims.

The bridges, which may be necessary to the completion of the highways, are usually constructed by contract between the county court, through commissioners, and the builders, who are paid by taxation levied by authority of the county agencies. These bridges are often constructed at the cost of large sums. They are under the control and are repaired by the county, which may, for sufficient cause, discontinue their use altogether. And we think the county is the real party in interest, holding, controlling, and owning the highways and bridges of the county for the use and benefit of the public, precisely in the same way counties, as quasi corporations, own the...