Mills v. Dawson

• Decision Date: 02 February 1923
• Citation: 197 Ky. 518
• Parties: Mills, et al. v. Dawson, et al.
• Court: Kentucky Court of Appeals

197 Ky. 518

Mills, et al. v. Dawson, et al.

Court of Appeals of Kentucky.

Decided February 2, 1923.

Appeal from Logan Circuit Court.

OSCAR M. SMITH and S. R. CREWDSON for appellants.

SELDEN W. TRIMBLE and COLEMAN TAYLOR for appellees.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

Some of the appellees and plaintiffs below own land abutting on what is alleged in the petition as a public road in Logan county and known as the Mills road, and which runs practically east and west and immediately adjacent to the south side of the right of way of the Louisville and Nashville Railroad Company, and being that part of the road between Ferguson station (formerly known as Whippoorwill station) and Young's crossing where Poors Mills road crosses the railroad track about one-half mile slightly south of west from the station referred to. The other plaintiffs own land in the immediate vicinity of that portion of the road involved and have used it as members of the public, and especially as an ingress and egress in travelling to and from their homes to places designated in the statute as grounds for opening a private way.

The action was filed to enjoin defendants who owned land abutting on each end of that portion of the road involved from obstructing it and to mandatorily require them to remove obstructions already put in it upon the ground that the road was a duly constituted public one and had never been legally abandoned. The answer denied the averments of the petition and further pleaded an abandonment of that portion of the road involved, if it had ever been a public one, and also relied on facts which it is claimed under the doctrine of the case of Trimble v. King, 131 Ky. 1, created an estoppel against plaintiffs from insisting on the relief demanded. Limitation was also relied on. Appropriate pleadings made the issues and after extensive preparation the case was submitted and the court by its judgment granted the relief sought to the extent of ordering the road unobstructed to the width of 16 feet, though the petition alleged that, as originally dedicated in 1866 and legally opened and accepted in 1867, it was 30 feet wide. From that judgment defendants appeal and rely on a number of errors as grounds for reversal. We shall dispose of the material ones in the course of this opinion.

It is first insisted by defendants that the portion of the road in controversy was never a public one, while plaintiffs contend that on September 24, 1866, after the railroad had been constructed in 1858, the owners of the land, over which the portion of the road in controversy ran, and others over which its extensions ran filed a paper with the Logan county court duly executed by them whereby they dedicated to the county in writing the necessary ground for the road and that the county court accepted the dedication of record, and opened the road and took charge of it by appointing overseers and having it worked continuously thereafter, or at least till up to the year 1898. It is proven that the written dedication is lost, but an order of the county court of the date mentioned is introduced, which reads: "L. H. Ferguson, D. C. Carr, Levi Mills, J. W. Morrow and David King, through whose lands the roads from the crossing of the Poors Mills road to the R. R. depot at Whippoorwill station, also the road from depot to King's shop, passes having acknowledged in writing their right of way, said roads are ordered to be established. And it is ordered that Levi Mills be appointed overseer to cut out and open up said roads with all the hands on the original boundary." Some of the persons therein named owned at that time all the land now owned by defendants. The appointed overseer, Levi Mills, made his report on August 26, 1867, which was accepted of record, the order being in these words: "The report of Levi Mills, overseer appointed to cut out and open up road to Ferguson station was received and approved." Other orders are introduced following that time whereby successive overseers were appointed over that portion of the road in controversy, and some of them were afterwards indicted and convicted for failing to properly work it, while at least one of the defendants, as late as 1920, was arrested upon the charge of obstructing the road, though he was not convicted because of mitigating circumstances, as is recited in the judgment of the county judge before whom he was arraigned.

Under numerous cases from this court, the latest of which is Rockcastle County v. Norton, 189 Ky. 690, it was held that a public road may be established, without conforming to the formalities prescribed by the statute for the condemnation of land to enforce the opening of a road, by parol dedication of the owners followed by the record acceptance of the county, and it follows as a matter of course that such a dedication, when duly accepted, will be binding on all parties though the dedication is in writing instead of by parol, and this conclusion meets the contention of defendants that the formalities of the statute in the establishment of the road were not complied with. Neither do we attach any importance to the fact that the written dedication was not produced. One successful answer to that contention is, that if it is competent to prove by oral testimony a parol dedication, as held in the Norton case, supra, the same rule would apply where there had been a written dedication, but which was lost. Another equally effective answer is, that the recitation in the order that the written dedication was made will, especially after the great lapse of time, be taken as true and that the court recited the facts in its order of acceptance.

At this point, however, it is insisted that Levi Mills, one of the dedicators, did not possess the...