Lehman v. Williams
| Decision Date | 05 March 1946 |
| Citation | 301 Ky. 729,193 S.W.2d 161 |
| Parties | LEHMAN v. WILLIAMS et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Logan County; E. J. Felts, Judge.
Suit by Thomas Lehman against Richard Williams and others for past injuries to plaintiff's land allegedly caused by wrongful acts committed during construction and in maintenance of a highway and for other relief. From a judgment dismissing the petition, plaintiff appeals.
Reversed with directions.
Robert B. Hardison, of Louisville, for appellant.
Eldon S. Dummit, Atty. Gen., and Elmer Drake and C. F. Kelly, Asst Attys. Gen., for appellee.
The appellant, Thomas Lehman, is the owner of land situated in Logan County. On October 4, 1944, the filed in the Logan circuit court a petition in equity in which he sought to recover damages for past injuries to his land, caused by the wrongful diversion of water, and other alleged wrongful acts committed during the construction and in the maintenance of a state highway adjacent to his land. He also asked for injunctive relief to prevent future injuries. The Commissioner of the Department of Highways of the Commonwealth of Kentucky, the State Highway Engineer, and various other officials who were connected with the Department of Highways were made defendants. The petition is lengthy and involved, but the plaintiff apparently based his cause of action on the theory that the injuries complained of constituted a taking of his land under section 242 of the Kentucky Constitution. The defendants challenged the jurisdiction of the Logan circuit court by a special demurrer which was sustained. A judgment was entered dismissing the plaintiff's petition, and he appeals.
The plaintiff in his petition studiously avoided reference to the Commonwealth of Kentucky apparently upon the theory that a suit, even where property has been taken, cannot be maintained against the state. However, the suit is essentially one against the commonwealth for property taken and for an injunction against its officials and agencies to prevent future injuries. Section 13 of our Constitution provides that no man's property shall be taken or applied to public use without the consent of his representatives and without just compensation being previously made to him. In Kentucky Bell Corporation v. Commonwealth, 295 Ky 21, 172 S.W.2d 661, 663, the Corporation sued the Commonwealth of Kentucky, the Department of Highways, the Commissioner of Highways and Bell County for damages for the taking, injuring, and destruction of its real estate in the construction of a state highway. The trial court directed a verdict for the Commonwealth, and the jury returned a verdict in favor of the County. On appeal the judgment was affirmed both as to the Commonwealth and the County, on the ground there was evidence to support the jury's finding that the plaintiff had been fully compensated for the property taken and on the further ground as to the Commonwealth that KRS 177.060 requires the county to pay for the right of way taken for highway purposes whether it be acquired by contract or by condemnation proceedings. However, in the course of the opinion it was said:
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...to award them attorneys' fees, expert witness fees, and other costs of participating in the civil action. Citing Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161 (1946), and other cases along that vein, the circuit court found that Defendants could not rely on sovereign immunity to shield th......
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...U.S. 573, 577, 66 S.Ct. 745, 90 L.Ed. 862; Kentucky State Park Commission v. Wilder, 256 Ky. 313, 315, 76 S.W.2d 4; Lehman v. Williams, 301 Ky. 729, 730, 193 S.W.2d 161; Louisiana Land & Exploration Co. v. State Mineral Board, 5 Cir., 229 F.2d 5, certiorari denied 351 U.S. 965, 76 S.Ct. 102......
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Stathers v. Garrard Cnty. Bd. of Educ.
...for damages growing out of the taking, injuring, or destroying of private property for public purposes.” Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161, 163 (1946). Similarly, in Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521 (1929), the Court reasoned: “The provision of the Constituti......
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Stathers v. Garrard Cnty. Bd. of Educ.
...for damages growing out of the taking, injuring, or destroying of private property for public purposes." Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161, 163 (1946). Similarly, in Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521 (1929), the Court reasoned:"The provision of the Constitutio......