Wharton v. Barber

• Decision Date: 07 May 1920
• Citation: 188 Ky. 57,221 S.W. 499
• Parties: WHARTON, COUNTY ROAD SUP'R, ET AL. v. BARBER.
• Court: Kentucky Court of Appeals

221 S.W. 499

188 Ky. 57

WHARTON, COUNTY ROAD SUP'R, ET AL. v. BARBER.

Court of Appeals of Kentucky.

May 7, 1920

Appeal from Circuit Court, Washington County.

Suit by R. O. Barber against J. R. Wharton, County Road Supervisor and others. From a judgment for plaintiff, defendants appeal and plaintiff cross-appeals. Affirmed on both appeals.

Joseph Polin, of Springfield, for appellants.

J. H McChord, of Springfield, for appellee.

CLARKE J.

The Springfield and Bardstown turnpike, just after crossing Cartwright creek in Washington county, gradually ascends a hill by traversing the side thereof for some 1500 feet. Appellee, Barber, who was plaintiff below, owns the land on the lower side of the road, which was built about 80 years ago. As originally constructed and until recently the water from the land above the road was carried in a ditch along the upper side of the road from the top to the bottom of the hill, where it was discharged through a stone culvert, 2 by 3 feet, onto plaintiff's land. There was no culvert or opening under or across the pike at any other place on the hillside.

Some time before the institution of this action water had broken across the turnpike a short distance above the stone culvert and cut a ditch in plaintiff's land. Thereafter the defendants, who are the county road supervisor and members of the fiscal court of Washington county, and whose duty it is to maintain and repair this and other county roads, caused an 18-inch corrugated metal pipe to be placed under the pike about 200 feet above the stone culvert, and through which water was discharged upon the lands of plaintiff and cut a ditch therein. In his petition the plaintiff alleged he had suffered and would continue to suffer great, irreparable, and constantly recurring injury as a result of the defendants placing the iron pipe under the pike and discharging water upon his lands at that point, and also by reason of their permitting the water to flow across the pike onto his lands, alleged to have been caused by the negligence of the defendants in failing to keep the ditch along the upper side of the road clear of obstructions and in proper repair.

Defendants' demurrer to the petition was overruled, and they answered, traversing the allegations of negligence, and alleging that the ditch that had theretofore been maintained on the upper side of the road from the top to the bottom of the hill was inadequate for the purpose, and that it was impracticable to make it so; that in order to properly maintain and keep the road in repair it had become necessary to place the culvert complained of under the pike, and that it would be necessary to place another similar or larger culvert thereunder at a point farther up the hill; that this necessity arose from the fact that the lands above the pike, which had formerly been in woods, had been cleared, which caused the water from the 10 1/2 acres drained into the ditch above the pike to reach the ditch more quickly and in greater volume than formerly; that the defendants were "vested with a discretion in the matter of placing ditches or drains across and under turnpike roads of the county; that the discretion in this case was reasonably exercised for the sole purpose of protecting and maintaining the turnpike; that plaintiff accepted title to his land with notice of the conditions herein set out and with notice of the fact that the turnpike company had legally acquired the right of way together with the rights, privileges, and appurtenances essential to the use and enjoyment of the right of way for the purpose for which it was intended; and that proper drainage is essential to the use, enjoyment, and maintenance of said road."

A demurrer was sustained to the answer, and upon defendants declining to plead further, a mandatory injunction was issued against them compelling them to remove the corrugated metal pipe which they had placed under the pike about 200 feet above the stone culvert, but declining to enjoin them from permitting water to flow across the pike onto plaintiff's land at other points. From so much of the judgment as required them to remove the metal pipe which they had placed under the pike, defendants have appealed, and plaintiff has prosecuted a cross-appeal from so much of the judgment as refused to enjoin the defendants from permitting water to flow across the pike at other points along the hillside upon his land.

It is the contention of the defendants that, being charged by statute with the duty and obligation of maintaining and keeping in repair the public roads of the county, they have the power, in the exercise of a reasonable discretion, to make such ditches and drains along and across the public roads of the county as are necessary to properly maintain and keep in repair such roads, and that the court erred in sustaining a demurrer to their answer pleading the necessity for the construction of the culvert complained of, and that same was a reasonable exercise of the discretion vested in them. In support of this contention we are referred to sections 4352 and 4353 of the statutes, which are as follows:

"Sec. 4352. The county road engineer may enter upon any of the lands adjacent to any of the public roads of his county for the purpose of opening any existing ditch or drain, or for digging a new ditch or drain for the free passage of water for the drainage of such public roads; upon the lands of any persons adjoining rivers, streams or creeks, to drive piles, throw up embankments, or to perform any other labor necessary to keep such rivers, streams or creeks within their proper channels, and to prevent their encroachment upon public roads or abutments of bridges. He may also enter upon the lands adjoining the public road, which during the spring freshets or at the time of high water are subject to overflow from such rivers, streams or creeks, to remove or change the position of the fence or other obstructions, preventing the free flow of water under or through a bridge or culvert whenever the same may be necessary for the protection of the public road or bridge.

Sec. 4353. When lands are entered upon under the provisions of the preceding section, the county road engineer may agree with the owner of such lands subject to the approval of the fiscal court, as to the amount of damages, if any, sustained by the owner in consequence of such entry in the performance of such work authorized by such section, and the amount of such damages shall be a charge to be paid by the county court out of the road funds in the county treasury. If the county road engineer is unable to agree with the owner upon the amount of such damages thus sustained, the amount thereof shall be ascertained, determined and paid in the manner that damages are so ascertained, determined and paid where new public roads are laid out and opened, and the fiscal court of the county and the landowners are unable to agree upon the amount thereof."

Assuming that the defendant, Wharton, is the county road engineer of Washington county, although he is designated in the pleadings as the county road supervisor, since the title of the officer in charge of the roads of the county has recently been changed from that of supervisor to engineer, and conceding that the Legislature by section 4352 attempted to confer upon that officer the power to construct such ditches and drains as were necessary to...