Wright v. Flood

• Decision Date: 25 February 1947
• Citation: 200 S.W.2d 117,304 Ky. 122
• Parties: WRIGHT et al. v. FLOOD.
• Court: Kentucky Court of Appeals

200 S.W.2d 117

304 Ky. 122

WRIGHT et al. v. FLOOD.

Court of Appeals of Kentucky

February 25, 1947

Appeal from Circuit Court, Shelby County; J. Wirt Turner, Judge.

Proceeding begun in Shelby county court pursuant to KRS 178.070 to close and discontinue a portion of the Harrodsburg-Drennon road as a county road, wherein R. P. Flood appeared in opposition. The county court entered an order closing the road as a county road, and R. P. Flood appealed from the order to the circuit court. From a judgment of the circuit court reversing judgment of the county court, Coleman Wright and others appeal.

Judgment of circuit court reversed.

William H. Hays, or Shelbyville, for appellants.

A. E Funk and Chat Chancellor, both of Frankfort, for appellee.

REES Chief Justice.

This is an appeal from a judgment of the Shelby circuit court reversing and setting aside a judgment of the Shelby county court closing a section of a county road known as the Harrodsburg-Drennon road, located in the northern portion of Shelby county.

At the point in question, the road runs in a north and south direction and connects on the north with State Highway No 43, which runs in an east and west direction, and on the south with a county road known as the Cropper-Cull road. From this intersection the Cropper-Cull road runs parallel with the tracks of the Louisville & Nashville railroad to the town of Cropper, a distance of seven-tenths of a mile, where it intersects with State Highway No. 43. The section of the Harrodsburg-Drennon road between the Cropper-Cull road and State Highway No. 43 is six-tenths of a mile in length, and passes through the lands of the appellee, R. P. Flood, and R D. Bellwood. R. P. Flood owns land on both sides of the southern part of this section and, after passing through his land a distance of 510 feet, the road passes through the land of R. D. Bellwood a distance of 2,500 feet to State Highway No. 43. The portion of the road which passes through Bellwood's land has not been used since 1935, when State Highway No. 43 was constructed. It appears that R. D. Bellwood constructed fences and gates across the road on his land. On March 14, 1933, the fiscal court of Shelby county ordered this portion of the road closed and directed that proper notices be published, but no action was taken pursuant to the order. In September, 1945, a similar order was entered by the fiscal court, and proceedings were begun in the Shelby county court, pursuant to section 178.070 of the Kentucky Revised Statutes, to close and discontinue the Harrodsburg-Drennon road as a county road from the point where it crosses the Louisville & Nashville railroad, 68 feet south of R. P. Flood's private entrance, to the point where it intersects State Highway No. 43, a total distance of six-tenths of a mile. The provisions of KRS 178.070, as to the filing of a petition, the publishing and posting of notices, and the appointment of viewers, were complied with. The viewers reported in writing that the closing of the road would not inconvenience any person or persons living in that community. On October 12, 1945, at a hearing at which R. P. Flood appeared in person and by counsel, the Shelby county court entered an order directing that the Harrodsburg-Drennon road be closed and discontinued as a county road from State Highway No. 43 over and through the lands of R. D. Bellwood and R. P. Flood to a point 68 feet north of the north line of the Louisville & Nashville railroad right of way. This is the point where R. P. Flood's private road enters the Harrodsburg-Drennon road, and the order of the county court left 68 feet of the road to be maintained by the county in order to afford Flood an entrance to the Cropper-Cull road. R. P. Flood appealed from the order of the county court to the Shelby circuit court, and on February 11, 1946, the circuit court entered a judgment reversing and setting aside the order of the county court. The county judge, county road engineer, and fiscal court of Shelby county have appealed.

It is argued by appellee that as an abutting property owner he has a property right in the Harrodsburg-Drennon road; that the closing of the road constitutes a taking of that property right; and that such a taking is in violation of sections 13 and 242 of our Constitution. Section 13 provides that no man's property shall be taken or applied to public use without just compensation being previously made to him, and section 242 provides that municipal and other corporations and individuals vested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by them. It further provides that upon appeal from the preliminary assessment, the amount of the damages shall be determined by a jury according to the course of the common law. Appellee also contends that KRS 178.070, which confers upon county courts jurisdiction to discontinue county roads, is unconstitutional since it contains no provision for the compensation of any person whose property might be taken in the course of such proceeding. This section of the Statutes is section 14 of a comprehensive road law adopted by the General Assembly in 1914, Chapter 80, Acts of 1914. Statutes containing similar provisions for discontinuing county roads have been in effect since the early days of the Commonwealth. In Cole v. Shannon, 1 J. J. Marsh. 218, a public road had been discontinued by an order of the county court after the publication of notice. A party through whose land the road passed appealed, and the appeal was dismissed on the ground that he had no right different from the general public and that owning the land through which a public road passes gives to the owner no exclusive or peculiar right to the road. In the course of the opinion the court, speaking...