Bardstown & Lexington Turnpike Co. v. Nelson County

60 S.W. 862, 109 Ky. 800, 1901 Ky. LEXIS 45

• Court: Court of Appeals of Kentucky
• Decided: February 13, 1901
• Status: Published

Opinion

Opinion op the court by

CHIEF JUSTICE PAYNTER

Reversing.

In obedience to a popular demand for free turnpikes and gravel roads, the General Assembly passed an act, approved March 17, 1896, empowering county courts to acquire and maintain free turnpikes and gravel roads. The act provides that the question should first be submitted to the electors of the county to ascertain their will with reference to the acquisition and maintenance of free turnpikes. At an election duly held for that purpose in Nelson county a majority of the qualified electors voting at the election voted in favor of the proposition, and the result of which election was duly certified. When-a majority of the electors express their will, in the manner provided by the act, in favor of the proposition for free turnpikes (section 5), the fiscal court of a county “may acquire, by gift, lease, purchase or contract, any or all of the turnpike roads, or parts of such as lie within the county, on the best terms consistent with public interest, in the discretion of said court.” When thé fiscal court of the county is unable to contract with the owners of a turnpike or gravel road for its purchase, it is made its duty to institute proceedings in the county court with the view of condemning such turnpike or road. This duty is imposed by section 12 of the act, which reads as follows: “At any time after a majority of the votes oast at an election held for that purpose in any county, have voted for free turnpikes and gravel roads, and the fiscal court of said county, being unable to enter into a contract with the owner or owners of any turnpike or gravel roads, or any part thereof, lying in said county, it shall be the duty of the fiscal court thereof tp file in the county court clerk’s office of said county a statement to the effect that it has been unable to enter into a contract to purchase said road, with the owner or owners thereof, with a description of the turnpike road desired to be obtained, and thereupon, the county judge shall appoint three impartial housekeepers of the county, who are landowners, one of whom may be recommended by the- managers of the road, whose duty it shall be to assess the value the owner or owners thereof may be entitled to receive for the said turnpike or gravel road so taken.” When such a proceeding is instituted the county is authorized to abandon it, as appears from section lo of the act, which reads as follows: “But the fiscal court of said county shall have the right to abandon the condemnation proceedings at any time it may desire, but it must pay the cost of said proceedings.”

The appellant owned a turnpike running from Bards: town, in Nelson county, to the city of Louisville in Jefferson county. About thirteen miles of this pike was situated in Nelson county. Some time in January, 1898, proceedings were instituted in the county count by the fiscal court of the county to condemn that part of the turnpike situated in Nelson county. It appears there was a pressing demand upon the county authorities that the turnpike of the appellant should be immediately made free. The fiscal court in regular session made an order embodying a proposition for the immediate use of the turnpike by the public free of toll, and the terms upon which it desired to secure it. The order reads as follows: “It is ordered by the Fiscal Court of Nelson County that this county and court do hereby agree and bind itself to pay to the Bardstown & Louisville Turnpike Road Company . . . interest at the rate of six per cent, upon the amounts which may be finally adjudged to them in the condemnatory proceedings now pending against them by this county in the Nelson County Court, but said interest to commence from the time they signify their acceptance of this proposition in writing to F. E. Daugherty, judge of Nelson County Court, and they make said roads free from the collection of toll, and collect no more toll upon said roads.'’ The board of directors and stockholders of the appellant held a meeting, and passed a resolution of acceptance of the proposition made by the Nelson County Fiscal Court, which is in language as follows, to wit: “And on motion of James S. Carpenter, at the request of the stockholders present, in person and by proxy, holding 1,651 shares of stock in this company, being a majority of all stock owned by all the parties in this company, it is ordered by the board that this company accept, and does hereby accept, the provisions of said order above recited, and the company hereby agrees and contracts with said Nelson county to accept the amount finally adjudged to it, with six per cent, interest per annum thereon from this date, as set forth in said order. The road embraces thirteen miles in Nelson county; gates having been thrown open in Nelson county on said road, and that.no tolls have been collected from the public for travel thereon since the 28th day of January, 1898. And, inasmuch as this agreement is had, the fiscal court is hereby requested to take charge of said road at once, and supervise, manage, and control it, and maintain the road as it has been and should be maintained, it being impossible for the company to do so under this agreement. It is hereby declared that the road is in god condition, and it is important that the same should be taken into the care and custody of the county under this agreement. It is ordered that a copy of this order, which is hereby declared the company’s acceptance of the provisions of said court’s order and contract and agreement thereunder with said Fiscal Court of Nelson County, be duly certified by tbe president of this company to F. E. Daugherty, judge of tbe Nelson County Court, under- the seal of this company, and be by the president delivered forthwith in person into the hands of the judge of the Nelson County Court. ’ A copy of the- order 'was delivered to F. E. Daugherty, judge of the Nelson County Court, upon which he made the following indorsement: “This proposition is accepted so far as it corresponds with the order of the fiscal court, — that is, agreeing to pay this Turnpike Road Company six per cent, interest on any amount finally adjudged it, — provided no tolls are collected by said company, but- all other matters mentioned or requested of said Nelson county are declined. March 7th, 1898.”

To fully understand the proposition, it is necessary to bear in mind that the county had voted in favor of free turnpikes, and that the county court was proceeding to acquire by condemnatory proceedings the appellant’s turnpike, and open it as a free turnpike to the traveling public. It was in contemplation of the parties that the county was to pay the amount which the final judgment fixed in the proceeding as a proper amount as compensation to the owners for it, but, not desiring to await the final judgment in the case before the pike should be made free to the public, the proposition was made to pay for making the pike free between the acceptance of the proposition and the final judgment in the proceeding in the county court. We can not suppose that the fiscal court intended to do the absurd thing of acquiring the use of the turnpike for the traveling public only for the time pending the proceeding in the county court to condemn it. It would be equally as absurd to suppose that the county court would be condemning it with no purpose of paying the owners the amount fixed in the proceeding as a proper compensation for it. No reasonable man can suppose that the turnpike company would remove its tollgates and throw the pike open to the traveling public for the brief period that the proceeding was to pend in the counity court, unless the parties had in contemplation that the county was to take the turnpike at the price adjudged in the county court .proceeding. The fiscal court had the right to' acquire the turnpike road by contract.' It was not necessary to institute the proceeding if it could make a contract for the purchase qf the property at a price which it deemed reasonable. In fact, the act only provides for proceedings to condemn when the fiscal court is unable to agree with the owners for the purchase of the road. So, under section 5 of the act, it is perfectly clear that the county court had the right to acquire the turnpike by gift, lease, or purchase, and^therefore it follows that the contract which it made with the appellees is binding and enforceable.

The' judgment below appealed from was on demurrer to the petition. It is averred in the petition that the offer,' which we have stated, was made and accepted as heretofore stated; that the company removed its tollgates, and turned the road over to the county; that the public has been using it, free of toll, since the acceptance. The commissioners appointed by the county court fixed the compensation for the road at something over $18,000, and, as the fiscal court dismissed its .proceeding in the county court, it is claimed that the appellant is entitled to recover interest on the amount fixed by the commissioners. The . question here involved is, does the petition state a cause of action? and in determining which we will not discuss the defense interposed by the answer, because it can not be considered in" determining the sufficiency of the petition on demurrer.

It is insisted by counsel for appellee that the acceptance of the proposition which the fiscal court made was only a qualified one, and therefore it amounted to no acceptance at all. It is unnecessary to enter into a discussion as to what would be the effect if the acceptance had not been full and complete of the proposition made, because we have reached the conclusion that it is a substantial acceptance of the proposition which was made by the fiscal Court to the appellant. The language of the resolution is that the company hereby accepts “the provisions of said order,” and it is also added that it would accept “the amount finally adjudged to it, with sis per cent, interest per annum.” The language here used is nothing more than the proposition made by the fiscal court, except it states it in a. different form. As we have said, it was in contemplation of the parties that the fiscal court was to take the turnpike road at the amount adjudged in the county court proceedings. The proposition was to pay six per cent, interest on the amount which might be “finally adjudged to the turnpike company” from the acceptance of the proposition until that judgment was entered. The appellant interpreted the proposition of the fiscal court as we do, -and said it would take the amount fixed by the county court, with interest. The acceptance did not import an intention to vary the proposition. The appellant in its acceptance proceeds to say that it was not collecting tolls upon the road, and could not do so under its agree, ment with the fiscal court. This is in response to the order of the county court which required the appellant to make the road free from the collection of toll, wherein it is said in the acceptance that the fiscal court was requested to take charge of the road at once, and supervise, manage, control, and maintain it as it has been and should be maintained, as purely advisory, and is a correct conclusion as to the duty imposed on the county by the proposition which it made.

It was not in the contemplation of the parties that the turnpike company was to retain the control and management of the turnpike road during the pendency of the proceeding, any more than it would have been expected to be after the final order was made. The implied obligation which the proposition of the fiscal court created was that it should have the same control and management of the road until the final order in the proceeding in the county court as it was to have thereafter. The question then arises, what relief is the appellant entitled to under the agreement which is made with the fiscal court? It was not bound to institute proceedings to condemn its road, neither does the act authorize it to do so. The power to condemn rested wrath the fiscal court. By dismissing the proceeding it violated its agreement to have the final order made fixing the amount of compensation which the appellant wtas to accept in payment of its road. We are of the opinion that the obligation of its contract required it to prosecute the proceeding which was then pending to a final determination, because it had contracted to do so. The provision of the statute which authorized it. to dismiss a proceeding was never intended to shield a county from liability on a- contract which it was authorized to make and did make- under section 5 of the act. It could not dismiss it, and thus relieve itself from the obligation which was imposed by its contract.

As the value of the appellant’s property was not fixed by the judgment of the court, and the action of the ap^ pellee prevented that order from being made, we are of the opinion that the appellant is entitled to recover the reasonable value of its turnpike road qf the date of its acceptance of the fiscal court’s proposition. To bold otherwise, it seems to us, would be in plain disregard of the rules that should control the action of individuals in their business and fiscal courts in public affairs. When parties have agreed upon a method of fixing the amount of a liability on a contract, and one of them violates the agreement by putting it out of the power of the other to have the amount ascertained in the manner agreed upon, then a court of competent jurisdiction is authorized to ascertain and adjudge the amount; otherwise, there would be a wrong without a remedy.

■ It appears that after the appellant accepted the proposition it did not assume any control of the pike or collect tolls thereon. Section 4732, Kentucky Statutes, provides that if a turnpike company fails, for a period of four months', to keep its road in'a condition safe for public travel, and to charge toll thereon for the same length of time, it shall be deemed to have abandoned its road, and it is made the duty of the fiscal court of the county to take charge and control the same. It is earnestly urged that as the appellant failed to control the road after the acceptance of the fiscal court’s proposition, and collect toll thereon, there was an abandonment of its road, and therefore it has no claim against the' county for compensation. From the averments of this petition, the appellant acted in the utmost good faith in surrendering the road to the fiscal court of Nelson county, and in not collecting toll since that time, relying, of course, upon the promise of the county that it would compensate it for the use and value of the road according to the agreement. If the appellee can defeat a recovery upon the grounds suggested, it would have been as well for the appellant to have surrendered its i'oad to the traveling public on the demand of tollgate raiders, as the effect would have been exactly the same,— no compensation in . either case. We can not agree with counsel for appellee that such is the proper effect to be given to this transaction. The judgment is reversed for proceedings consistent with this opinion.