Rout v. Mountjoy

• Decision Date: 17 April 1843
• Parties: Rout et al. v. Mountjoy.
• Court: Kentucky Court of Appeals

42 Ky. 300

Rout et al. v. Mountjoy.

Court of Appeals of Kentucky.

April 17, 1843

Private pass-ways. Inquisition. Notice.

ERROR TO THE ANDERSON COUNTY COURT.

Herndon and Hardin for plaintiffs

Draffin for defendant.

OPINION

BRECK JUGDE

The case stated.

THE defendant in error sought to establish, by proceedings in the Anderson County Court, a private pass-way over the lands of John Rout and Myers, plaintiffs in error. After various proceedings, the pass-way, by the judgment of that Court, was established, and the case is now before this Court for revision.

Various errors are assigned, but prior to noticing them, we will dispose of the objection or question raised by the defendant in error, as to the jurisdiction of this Court in cases of this kind.

The tenth section of the act authorizing the establishment of private pass-ways, (Stat. Law, 139,) gave this Court the same jurisdiction upon that subject that it had by the laws then in force in road cases. This Court had then power to try all matters of law and fact, in questions relating to public roads. The act of 1830, (Stat Law, 1408,) has abridged that power and abolished the jurisdiction of this Court, except as to matters of law merely, which it still retains, as settled by this Court in Case et al. vs Myers, (6 Dana, 330.) So that, as to errors in law, there can be no doubt of the jurisdiction of this Court in this case. Whether the jurisdiction of this Court in this class of cases was to any extent affected by the act of 1830, referred to, is a question which, in this case, we deem unnecessary to decide, as matters of law alone are presented in it for consideration.

This Court can only revise the decisions of the County C urt in relation to private pass-ways as to matters of law, not of fact: (6 Dana 330.)

Having disposed of the question of jurisdiction, we will now notice the objections to the proceedings of the County Court, made by the plaintiffs in error.

It is insisted that the original notice of the defendant in error, the order appointing viewers, and their report, and the inquest of the jury, under the writ of ad quod damnum, were all irregular and defective, and that the Court erred in overruling the several motions to set them aside.

The notice was for a pass-way, to run upon the line between John Rout and Myers, but it was also directed to and served on Robert Rout, although it does not appear from the notice...