Bond v. Mullins

60 Ky. 282, 3 Met. 282, 1860 Ky. LEXIS 72

• Court: Court of Appeals of Kentucky
• Decided: December 26, 1860
• Status: Published

Opinion

JUDGE DUVALL

delivered tiie opinion of tee court :

The county court of Anderson county, on the application of Mullins, made an order appointing viewers “to view the Bairdstown road, and the places where it is proposed to erect two gates across the same, viz : One at Thos. Kavanaugh’s woodland pasture, and the other between said Mullins’ and Mrs. Hackley’s, and report the conveniences and inconveniences which will result as well to individuals as to the public from the erection of said gates.”

At the next term the viewers reported, that “after having viewed the place's proposed to be gated by M. M. Mullins in this order, pronounce it to be our belief that the public would not be materially injured by the gates, and that Mullins would be considerably benefited by them.”

Exceptions both to the order and the report were filed in due time, by Bond. The court overruled the exceptions, and allowed the applicant to erect two gates at the places mentioned in the order, and rendered a judgment against Bond for costs.

Bond appealed to the circuit court, but his appeal was dismissed, at his costs, and from that order he has appealed to this court.

On what ground the circuit court dismissed the appeal does not appear from the record.

The 40th section of the chapter on Roads and Passways, (2 Rev. Stat., page 294,) expressly provides that in such cases the party aggrieved may prosecute a writ of error within one year to the circuit court of the county.

Nor was there any defect or error as to parties. Bond or any other individual had a right to resist the application, and having done so upon the record, he became a party to the proceeding, and had a right, under the statute, to prosecute an apr peal.

The order appointing the viewers wholly fails to conform to the requirements of the statute, and is fatally defective, in one particular at least. It gives no sufficient description of the places where it is proposed to erect the gates.

The 2d section of the chapter requires the viewers to view the road, “and the places where it is proposed to erect the gates ;” and the 10th section provides that “if the decision be in favor of erecting gates, the court shall fix the site of such gates, and the description of the gate to be erected.”

It is perfectly manifest that there is nothing in the order in the case which fixes, with any degree of certainty, the places or sites of the two gates, for the erection of which this application is made.

And the report of the viewers is defective for the same reason, and for the additional reason that it fails to state the conveniences or inconveniences that would result to the public or to individuals. All that the report discloses on this subject is that the public would not be materially injured by the gates, and that the applicant would be considerably benefited by them.

It is clear, therefore, that upon such an order and snch a report the court had no authority to proceed further with the application, but should have sustained the exceptions to both.

The judgment is therefore reversed, and the cause remanded with directions to the circuit court to reverse the order of the county court, to sustain the exceptions of the appellant, and for further proceedings in conformity with this opinion.