Rose v. Nolen

• Citation: 179 S.W. 229,166 Ky. 336
• Parties: ROSE, JUDGE, v. NOLEN ET AL. [a1]
• Decision Date: 21 October 1915
• Court: Kentucky Court of Appeals

179 S.W. 229

166 Ky. 336

ROSE, JUDGE, v. NOLEN ET AL. ^[a1]

Court of Appeals of Kentucky.

October 21, 1915

Appeal from Circuit Court, Whitley County.

Petition by James Nolen and others for a writ of mandamus against B F. Rose, Judge. From a judgment issuing the writ, respondent appeals. Reversed.

Tye Siler & Gatliff, of Williamsburg, for appellant.

Bryant & Lawson, of Williamsburg, for appellees.

CARROLL J.

The appellee Nolen, for himself and other citizens of Whitley county, brought this action for a mandamus against the appellant, Rose, as judge of the Whitley county court. The petition alleged, in substance, that the fiscal court of Whitley county had, by order of court, directed the public roads of the county to be worked by citizens in accordance with the statute; that the judge of the county court had divided Whitley county into road precincts, fixing the boundaries for the same, allotting the citizens subject to roadwork to work in their respective precincts, also appointing overseers for the roads; that there was a public road in Whitley county about two miles in length leading from the Jane Lay crossing to the mining camps of the Proctor Coal Company; that the judge, in dividing the county into road precincts, fixing the boundaries thereof, and allotting hands and appointing overseers thereon, did not include this road in any of the road precincts or appoint an overseer therefor or allot hands thereto, and refused to do any of these things. A writ of mandamus was prayed against the judge directing him, as county judge, to assign the road to a precinct, appoint an overseer therefor, and allot hands thereto. The answer of the judge was merely a traverse of the averments of the petition.

There was an agreed stipulation of facts showing that this road which, it appears, had never been accepted by the county as a road, was fenced on both sides for nearly all of its entire distance, and had been used peaceably, continuously, and openly by the public generally for more than 15 years next before the commencement of this suit; that in fixing road precincts, appointing road overseers for each precinct, and allotting hands to work on each road, the judge did not put this road in any road precinct, or appoint an overseer therefor, or allot hands thereto.

The circuit judge directed a writ of mandamus to issue compelling the county judge to set apart this road in a road precinct and appoint an overseer therefor and allot hands thereto. From this order, the county judge appeals.

The road in question had been used by the public for a sufficient period of time to constitute it a highway, with the right of free travel thereon as between the public and the owners of the soil over which the road runs. But this use by the public did not impose on the county the duty of keeping the road in repair as a part of the system of public roads under the control of the county.

Section 4287 of the Kentucky Statutes provides in part that:

"All public roads heretofore established by the several county courts, which have not been vacated according to law, are hereby declared to

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