Postlethweighte v. Towery

• Decision Date: 19 March 1935
• Citation: 258 Ky. 468,80 S.W.2d 541
• Parties: POSTLETHWEIGHTE, County Judge, et al. v. TOWERY.
• Court: Kentucky Court of Appeals

80 S.W.2d 541

258 Ky. 468

POSTLETHWEIGHTE, County Judge, et al. v. TOWERY.

Court of Appeals of Kentucky

March 19, 1935

Appeal from Circuit Court, Crittenden County.

Suit by Aaron Towery against David H. Postlethweighte, County Judge and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Edward D. Stone, of Marion, and Charles Ferguson, of Smithland, for appellants.

Blue &amp Eldred and Marshall P. Eldred, all of Princeton, for appellee.

STANLEY Commissioner.

The appellee, Aaron Towery, sued the members of the fiscal court of Crittenden county, the former county attorney, and the former county judge, and prayed judgment for $1,000, and that the defendants, as such fiscal court, be required to enter an order setting forth an agreement made by the plaintiff with the county attorney and the county judge to pay him that sum for a right of way for a state road, and to provide for its payment. General and special demurrers to the petition being overruled, a trial was had on the issues joined, including the plea by the defendants of lack of authority of the county judge or county attorney to bind the county. Judgment for the plaintiff was rendered as prayed.

The petition, as amended, after naming the parties and their official relations, alleges that the state highway commission had directed the construction of a highway from Marion to Providence, and "that the state highway commission had directed the county attorney, R. L. Moore, to take such steps as might be necessary to secure the right of way from plaintiff through his land. That acting under said order from the highway commission the defendant, R. L. Moore, who was then the acting county attorney, and L. E. Waddell, who was then the acting County Judge, of Crittenden County, called upon the plaintiff, on the 18th day of October, 1933, and arranged and agreed with plaintiff that if he would convey the right of way to the state highway commission the right of way through his land he should be paid the sum of one thousand dollars in cash."

It is further alleged that pursuant to that agreement the plaintiff and his wife executed a deed to the right of way to the state highway commission as described and as called for by its plans. It was delivered to the county officers on October 18 1933, and was put to record by the county attorney for and on behalf of the highway commission, which took possession of the land and built the road without paying any part of the consideration therefor. That portion of section 4356t-7 of the Statutes copied below was set up in connection with the allegations of the refusal of the fiscal court to recognize the agreement. There were filed with and as a part of the petition copies of entries on the records of the fiscal court showing that on October 4, 1933, a motion offering Towery $600 for a right of way, and directing the county attorney to institute condemnation proceedings in case the offer was refused, was lost; that on November 14, 1933, a motion to approve the securing of the right of way was lost; and on February 23, 1934, an order was entered specifically rejecting the claim of Towery for $1,000 and ordering that it be not paid.

The evidence of the plaintiff stripped of details was substantially as the facts set forth in the petition, with the further proof that the county attorney had received a letter from the highway commission directing that he should proceed to obtain the right of way for the entire route of this road; that the deed was prepared in the office of the highway commission, but a provision for the construction of an underpass for stock was inserted by the county attorney and that, after being delivered to the county attorney, the deed was immediately lodged by him for record in the office of the county court clerk. The defendants' evidence principally related to the matter of values, which seems to have been...