Montgomery County v. Tipton

• Decision Date: 31 January 1891
• Citation: 15 S.W. 249
• Parties: MONTGOMERY COUNTY v. TIPTON et al.
• Court: Kentucky Court of Appeals

15 S.W. 249

MONTGOMERY COUNTY v. TIPTON et al.

Court of Appeals of Kentucky.

January 31, 1891

Appeal from circuit court, Montgomery county.

E. C. Orear, J. C. Elliston, and J. H. Hazelrigg, for appellant.

Young, Mitchell & Young and E. W. Hines, for appellee.

PRYOR, J.

The county court of Montgomery county, on the application of James D. Tipton, established a county road that in the opinion of that court was necessary for the use of the public. The case is now in this court on the appeal of the county, the appellant claiming that the road should not have been opened, and that the proceedings were irregular. The county court has entered an order saying, in effect, that the road was necessary for the convenience of the public; and if the county has the right to an appeal, and we find no provision of the statute or Code authorizing it, the merit of the controversy is with the applicant. The statute provides that the county attorney shall oppose the wrongful alteration or discontinuance of a public road, and in 8 Bush, 444, in the Case of Kimberlin, it was held that the county attorney might appeal in the name of the commonwealth. There is no provision requiring the county attorney to oppose the opening of a new road, and, while we think such a duty is incumbent upon him, where the county court determines the necessity for the road, and establishes it, no appeal should be allowed unless directed by the county court, conceding that the right of appeal exists in behalf of the county. The statute provides that it shall be the duty of the county attorney, when directed by the county court, to institute and conduct suits, motions, and prosecutions of every description before any of the courts of this commonwealth in which the county is interested. Article 3, c. 5, § 7, Gen. St. Ky. In this case the county court wants the road established, and in our opinion the appeal in such a case should be dismissed.