Shake v. Frazer
| Decision Date | 04 March 1893 |
| Citation | 21 S.W. 583,94 Ky. 143 |
| Parties | SHAKE v. FRAZER. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Union county.
Not to be officially reported.
Proceeding instituted by William Frazer to condemn land for a private way over the land of Isaac N. Shake. From a judgment condemning the land, Shake appeals. Reversed.
William Lindsay and Sam C. Hughes, for appellant.
H. D Allen and D. W. Lindsey, for appellee.
The property of the citizen may be taken by the sovereign power for a public use, upon compensation being first made, and this is called "eminent domain;" but the taking of the private property of one for the private use of another however necessary it may be for the use and enjoyment of the person to whom the right of profits is transferred, has invariably been held unconstitutional. Statutes authorizing the creation of private pass ways over one's land for the benefit of another have been sustained for the reason the public is directly interested in their establishment, to enable the citizen to discharge the duties he owes the state. When summoned as a witness or juror, he is entitled to a way out from his premises, that he may obey the demand of the public upon him; and also, as said in Robinson v. Swope reported in 12 Bush, 21, the public has an interest in his attendance at elections, "places of public worship, and that he shall be provided a way to market, that he may buy and sell, so as to provide himself with those things without which he could not discharge his civil and social duties." The statute of this state in regard to pass ways, among other things, provides that a pass way may be established to enable the applicant to pass from one tract of land to another owned by him; and this part of the statute was held in the case cited to be unconstitutional, for the reason that it was taking the private property of one for the mere convenience of another. The appellee is attempting to avoid the effect of that decision by showing that the outlet is necessary to enable him to get to his county seat, or to his mill, or to some other public place, when it appears there is no one living on this tract of land; and no reason for taking appellant's property, and giving it to the use of the appellee, except as a matter of great convenience to the latter. The appellee is living on another tract of land where there is every facility afforded him for going to his county seat,...
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