Waller v. Syck
| Decision Date | 11 January 1912 |
| Citation | 146 Ky. 181,142 S.W. 229 |
| Parties | WALLER et al. v. SYCK et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County.
Action by George W. Syck and another against Frank Waller and another. From a judgment for plaintiffs, defendants appeal. Reversed, with directions to dismiss.
W. H Flanery and Roscoe Vanover, for appellants.
Butler & Moore and N. J. Auxier, for appellees.
The appellees, as plaintiffs below, brought this suit in equity against the appellants, defendants below, asking for a mandatory injunction requiring the appellants to remove from a public road fences they had placed across it, and to open the road for public travel. They set up in detail the special damages they sustained by reason of the obstruction of the road. For defense, the appellants pleaded that a new road had been opened to take the place of the old road, and that, when this new road was opened for public use, they inclosed by fences the old road that was a part of the land owned by them. Upon hearing the case the lower court entered a judgment, ordering appellants to remove the fences they had erected across the old road, or to establish gates in the fences where they crossed the road. From this judgment this appeal is prosecuted.
The records of the county court are not complete, but no question is raised about this. They show that "notice is given that at the August term, 1902, of the Pike county court, that a petition will be filed in said court asking for changes to be made in the public road on lower Chloe creek, beginning opposite Allen Kline's and running up said lower Chloe creek to the gap in the head of same, and thence down upper Chloe creek to mouth of same, and up the river to James Hamilton's." The petition filed in the Pike county court asked for "a change in the public road leading from the road from the lower Chloe creek road, beginning opposite Allen Kline's, up said Chloe creek to a gap in the head of same, thence down upper Chloe creek to the mouth of same, and up the river to James Hamilton's, making such necessary changes in said boundary." The order appointing the commissioners recites that "the commissioners will make all changes necessary or convenient on said road, and will locate and describe by courses and distances the changes, and will report the convenience and inconvenience to the public as well as individuals, and the names of landowners over whose land the proposed road runs and shall state the commencement and termination of the changes. ***" The report of the commissioners is not in the record, but there is an order reciting that, "the commissioners having made and filed their report at a former term of this court, which was approved, it is now ordered and adjudged by the court that said road as reported by said commissioners be and same is now established, which report fully describes the changes in said road as hereafter set out, as follows. ***" This order described a number of changes at different points made in the old road, among them being the alteration at the point in controversy. There is another order of court showing that "Frank Waller (the appellant) be and he is allowed the sum of $250.00 for land and fencing new road or change on Chloe creek, Pike county Kentucky."
With the record in this condition, the question for decision is this: When by order of the county court the location of a public road is changed, is it necessary to authorize the closing of the old road by the owner of the land over which the old road runs that there should be an order of the county court directing or permitting the old road to be closed, or does the mere fact that a new road has been opened to take the place of the old road authorize the owner of land over which the old road runs to close it, notwithstanding the fact that the closing of the old road will subject to inconvenience persons who had used it for public travel? It is the contention of appellants that, when the route of a road is changed by order of court duly made and a new road is opened to take the place of the old road, it is not necessary that the notice, petition, report of commissioners, or orders of court should mention the fact that, if the location of the road is changed and a new road is established on the proposed route to take the place of the old road, the old road will be closed, as the mere fact that the location of the road is changed in and of itself operates to close the old road when the road is opened in the new location. On the other hand, it is insisted for appellees that, although the location of a public road may be changed and a new road established, this does not authorize the closing of the old road in the absence of an order of court made in conformity to the statute permitting roads to be closed; and, as it is admitted that no order of court was made...
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Illinois Central Railroad Company v. Ward
...was constitutional and that Bradbury, who was a party to the proceedings in the county court, was bound thereby. Cf. Walter v. Syck, 146 Ky. 181, 142 S.W. 229. In Chenault v. Collins, supra, a proceeding was pending upon petition in the county court to bring about a change in the location o......
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...example) or whether the county held only an easement. Appellant's argument can be summarized by this quote taken from Waller v. Syck, 146 Ky. 181, 142 S.W. 229, 231 (1912): As to whether the ground occupied by the old road was owned by the county or by appellants the record does not show. B......
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Illinois Cent. R. Co. v. Ward
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