Roush & Co. v. Vanceburg, Turnpike Co.

152 S.W. 768, 151 Ky. 655, 1913 Ky. LEXIS 547

• Court: Court of Appeals of Kentucky
• Decided: January 22, 1913
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Hobson

Affirming.

This .siuit was brought by .appellants against the Vanceburg, Salt Lick, Tolesboro .and Maysville Turnpike Road Company, alleging that they owned certain bonds issued by the Turnpike Company which were unpaid; that in the year 1897 in pursuance of the free turnpike act, Lewis county received from the Turnpike Company its turnpike for the purpose of its being used thereafter as a county road. The transfer was alleged to be invalid under section 203 of the Constitution. By an amended petition it was alleged that the transfer was fraudulent and void as to the creditors of the Turnpike Company. The defendants1 demurred1 to the petition; the demurrer was sustained1 and the petition dismissed. Appellants appealed to this court. On the appeal the judgment was affirmed as to» Lewis county and reversed as ,to the Turnpike Company, the court holding that the alleged transfer of the road by the Turnpike Company to the county was valid under section 203 of the Constitution; and that the amended petition charging that the transfer was fraudulent, did not state facts -.sufficient to- maintain the action 'as to’ the county. (Roush v. Vanceburg, etc. Turnpike Co., 120 Ky., 165). On the return of the ease to the circuit court, a judgment was entered in favor of the plaintiffs against the Turnpike Company, for their debt with interest and cost. Execution issued on the judgment and was returned no property found. The plaintiffs then filed an amended petition in the same action against Lewis county setting up the judgment and return of no property against the Turnpike Company, and alleging in substance that the Turnpike Company had not transferred all the turnpike to the county as had been by mistake alleged in the original petition, but that it had) transferred to the county only one section of its. tunrpike 14 miles long and that the other section was still the property of the Turnpike Company but in the ■ possession of Lewis county. Process was issued upon the amended petition; the county’s demurrer to it was overruled1, and then an. amended petition was filed in which it was alleged that the county had not paid anything or agreed to' pay anything for the section of the pike to which it obtained no conveyance; that the Turnpike Company was insolvent and had no- mean.® of paying the plaintiffs’ debt. 'A3 second amended petition was- later filed in which it was alleged that the first section of the pike was simply transferred to the county by a lease and that the county had in fact acquired no title to it by condemnation proceedings or otherwise. An answer was filed by the county traversing the allegations of the amended petitions and pleading limitation and alleging affirmatively how it came in possession of the turnpike. Replies were filed by the plaintiff controverting the affirmative allegations of the answer; proof was- taken and' on final hearing the circuit court dismissed’ the petition of the plaintiffs. They appeal.

As was determined when the case was here on the former appeal, the plaintiffs have no lien on the property of the Turnpike Company. They are simply general creditors. Section 4302 Ky. St. is as follows:

“The owners of the stock of any turnpike, plank, gravel or other road may, -at any time, surrender to the fiscal court of the county in which the road is situated, the right to use, occupy, repair and1 control the same as a public road, and thereupon said court may immediately take charge of said road, which shall become a part of the public road system of the county.”

On January 11, 1907, the fiscal court of Lewis county, by an order duly entered, accepted and received, on behalf of the county, the first 'section of the turnpike, the stockholders and officers of the company having at a meeting duly held for the purpose, surrendered it to the fiscal court upon the sole condition that the court accept and receive the road and continue to use it as a county road for the use of the traveling public maintained by the county as a county road. When this surrender was made by the Turnpike Company, they had been unable for months to keep the road in condition for travel, or to maintain toll gates upon it; the property was of no value, and was voluntarily surrendered by the company to the county in order that the county might maintain the road in good order. At that time some of the stockholders objected to the other section of the road being surrendered to the county. The fiscal court on the same day made an order that being unable to enter into’ a contract with the owners for the acquisition of the second section of the road, the court ordered this fact to be certified to the Lewis county court, and that that court be Requested to appoint three impartial housekeepers of the county to assess the value of the road and that the proper steps be taken to condemn it for the county. The county court made an order appointing three impartial housekeepers to assess the value of the property, and they filed a report, but at this stage of the proceedings the stockholders who had objected to the county taking over the property, ceased to make any further fight against it, and the county with the 'acquiescence of the company and its stockholders, took possession also of the second section of the road, just as it had of the other section. All this occurred in the year 1897. The county has since held and maintained the turnpike as a county road free for the use of all the citizens of the county and without objection by any officer or stockholder of the company. At the time the .county took possession, the company was without means, the road was out of order, and the company had been unable for months either to put the road in order or to maintain gates upon it. The property was of no value, and the course which things took was due to the fact that all the parties recognized that it was inevitable that the county must take the road and keep it up.

Under the statute the owners of the stock of any turnpike company may at any time surrender to the fiscal court of the county in which the road is situated, the right to use and control it as a public road; and thereupon it is the duty of the court immediately to take charge of the road; and the road 'becomes a part of the public road system of the county. What the stockholders of this Turnpike Company could do by direct action they could do by conduct. They by formal action surrendered one section of the road and the county accepted it. As to the other section they took no formal action but they acquiesced in the county’s taking possession of the road in 1897, and have continued to acquiesce in it from that time to this. They are estopped to say they did not consent to the surrender of the road to the county; for, induced by their apparent consent, the county spent money on the road putting it in order, and has since maintained it. They could not stand by and see these things done, acquiescing in them when they were done, and afterwards maintain that they had not consented. But it is insisted for the appellants that while the stockholders may be estopped, they are not estopped to say that the road is still the property of the Turnpike Company. The title to the property was in the Turnpike Company and the control of the Turnpike Company was vested in the stockholders. They could dispose of fheir property under the statute, and appellants have no right to complain unless a fraud was committed on their rights. It is true a debtor may not. give away his property to the prejudice of his creditors; but that this transfer was not fraudulent was the very question determined’on the former appeal of this case on the facts then alleged. The transaction was had and appellees had notice of it more than five years before this proceeding was instituted and the right of action to attack it .as fraudulent was barred by limitation. Besides the property being of no value, appellants were not prejudiced by the transaction. The road could not be maintained as a toll road unless it was put in order. This required money. The property in its condition at that time was a charge rather than an asset. The county court by proper proceedings could have forfeited the franchises of the Turnpike company for failing to keep its road in order or it could have prosecuted to a final termination its condemnation suit; but it was unnecessary to do either of these things when the stockholders consented for the county to take charge and control of the turnpike as it was. Upon the whole record we conclude 'that no substantial rights of the appellant were prejudiced .by the judgment.

Judgment affirmed.