Rockcastle County v. Norton

• Decision Date: 26 October 1920
• Citation: 225 S.W. 1079,189 Ky. 690
• Parties: ROCKCASTLE COUNTY ET AL. v. NORTON.
• Court: Kentucky Court of Appeals

225 S.W. 1079

189 Ky. 690

ROCKCASTLE COUNTY ET AL. v. NORTON.

Court of Appeals of Kentucky.

October 26, 1920

Rehearing Denied Dec. 17, 1920.

Appeal from Circuit Court, Rockcastle County.

Action by J. M. Norton against Rockcastle County and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

S.D Lewis and L. W. Bethurum, both of Mt. Vernon, for appellants.

C. C Williams, of Mt. Vernon, for appellee.

HURT J.

This action was instituted by the appellee J. M. Morton, against the appellants, Rockcastle county and George Winstead, to enjoin them from opening for travel a section of what is contended by the appellants to be a public highway of the county, and by the appellee to have once been a public highway, but which has been lawfully discontinued and closed up by fencing. The road in controversy connects the road from Mt. Vernon to Somerset, at a point near Wabd with the road leading from Hansford to Bullock's Mill, at a point near Pumpkin Hollow. The trial of the action resulted in the granting to the appellee of the relief sought, and the county of Rockcastle and Winstead have appealed.

The facts out of which the litigation grew appear from the record to be substantially as follows: It does not appear that the road from Wabd to Pumpkin Hollow was established in the regular way by proceedings in the county court, as provided by the statutes, or at least, if it was established in that manner, there is no attempt made in the record to demonstrate that fact. The road, however, had existed for at least 40 years before the interruption complained of, during which time the public had continuously, uninterruptedly, and adversely used the road as a public highway for travel, and more than 15 years, previous to the year 1909, if not during the entire existence of the road up to that time, the county court had accepted it as a public highway and continuously maintained exclusive control over it by the assignment of hands to work it under the supervision and direction of overseers, who were appointed by the county court, and the hands thus assigned, under the direction of the overseers had during such time kept it in such repair for travel as ordinary roads of that character were maintained at that time. From such a state of facts, it will be conclusively presumed that a road was originally established by the proceedings provided by the statutes for the establishment of a public road, or to have been dedicated for and duly accepted by the proper authorities as a public highway. Greenup Co. v. Maysville & Big Sandy R. R. Co., 21 S.W. 351, 14 Ky. Law Rep. 700; Gedge v. Commonwealth, 9 Bush, 64; Wilkins v. Barnes, 79 Ky. 323; Commonwealth v. Terry, 86 S.W. 519, 27 Ky. Law Rep 684; L. H. & St. L. Ry. v. Commonwealth, 104 Ky. 35, 46 S.W. 207, 20 Ky. Law Rep. 371; Witt v. Hughes, 66 S.W. 281, 23 Ky. Law Rep. 1836; Gatewood v. Cooper, 38 S.W. 690, 18 Ky. Law Rep. 869; Riley v. Buchannon, 76 S.W. 527, 25 Ky. Law Rep. 863, 63 L. R. A. 642; Commonwealth v. Abney, 4 T. B. Mon. 477; Elliott v. Treadway, 10 B. Mon. 22; Leslie Co. v. Southern Lumber Co., 89 S.W. 242, 28 Ky. Law Rep. 335. Hence the road in controversy was an established public road of the county.

A portion of the road as established extended over the lands of appellee; that is, from about where the road crossed Skeggs creek to a point where the lands of appellee adjoin the lands of one Rome Graves. This portion of the road had three hills upon it, was steep, rocky, and difficult of travel by a loaded wagon. An agitation had been going on among the residents of the vicinity, and especially among those persons who were assigned by the county court to assist an overseer in keeping it in repair, for several years, to have an alteration made in the location of the road at this point, so as to obtain a better grade for the road and to avoid the hills, and in 1909 or in 1910 the people whose lands adjoin a portion of the road, an alteration in which was desired, and such of the persons assigned to keep the road in repair as were present at the time, gave their assent to the alteration, and certain persons who lived south of the road with an outlet from their premises to it, within the proposed alteration, seem to have assented thereto, or acquiesced therein, when the appellee agreed to open a passway across his lands to the road to connect with the road when altered. In the meantime, verbal exchanges in regard to the alteration appear to have been taking place between the then judge of the county court and the overseer of the road, and probably other parties who were either for or opposed to making the change in the course of the road. Just what the parties understood from these verbal exchanges does not appear, but just before the alteration was made the overseer, as though doubting his authority to do so, or to secure information as to how to proceed, interviewed the judge of the county court over the telephone, and was assured by the judge that he had made an order, presumably in his court, directing the alteration to be made, and further directed the overseer to proceed and effect it, and, in accordance with the authority which he supposed the county judge had and had exercised, he proceeded to do it. The appellee, in consideration of the alteration agreed to permit the new roadbed made necessary by the alteration to be located upon his lands, and to erect at his own cost the new fencing made necessary to inclose his lands along the new roadbed, if the county court would pay the bill for the wire fencing. This appellee understood from the overseer to have been agreed to by the county court. The appellee and overseer, as well as other interested parties, who were consulted, all acted under the belief that the proper steps had been taken in the county court to authorize the alteration in the road, and that the proper orders and judgment in the court had been made which authorized and directed the alteration. Acting under such belief, the overseer, with the assistance of the persons assigned to assist him in keeping the road in repair, made an alteration in the course of the road, by opening a new roadbed, leaving the old roadbed about where Skeggs creek crossed the line of appellee's lands, and running in a northerly direction over his lands until it reached the north boundary of his farm, and then along a line between his lands and those of an adjoining proprietor, and finally connecting with the old roadbed at the eastern side of his lands. In order to do this, appellee's fencing was removed, and to inclose his lands new fences were erected along the new roadbed by appellee, and some one having in custody the county's funds paid for the necessary new wire the sum of $90. Since that time, the overseer of the road, with the hands assigned him by the county court, has exercised supervision and control over the new portion of the road and has given it some attention in the way of repairs. The appellee, under the belief that the old roadbed had been abandoned and had reverted to him by operation of law, placed his fences...