30 Ky.L.Rptr. 85
Court of Appeals of Kentucky.
CHAMBERLAINE ET AL. v. HIGNITE ET AL.
Nov. 20, 1906.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Petition by M. G. Hignite and others for the opening of a road, and from a judgment of the circuit court, establishing the road, N. A. Chamberlaine and others appeal.

HOBSON, C. J.
A petition was filed in the Knox county court asking that a road be opened beginning at the old road at a point near the dwelling house of Vol Philpot through certain lands to a point on Big Richland Creek, opposite Pitzer street in J. D. Black's addition to the city of Barbourville, so as to intersect with the street at that point. Proper notice having been given, the court appointed commissioners, who filed a report. Exceptions were filed to the report, and the commissioners filed an amended report. They fixed the damages to the landowners at $302. A jury was demanded, who fixed the damages at $400. The court then confirmed the report, and entered judgment establishing the road. The landowners not satisfied, took an appeal to the circuit court, where the case was tried anew. The jury in the circuit court fixed the damages at $325, and the court having overruled the motion for a new trial and entered judgment establishing the road, the landowners appeal.

The present act is different from the former statutes, and the decisions under these statutes as to what must be contained in the order of the county court are no longer applicable. The order of the county court, when read in connection with the petition, is sufficient. Like any other record the whole of it must be read together in determining its meaning. It is said that two of the commissioners who acted were not appointed by the county court, but their report recites that they were appointed by the county court. They were allowed by the county court to amend their report. They filed an amended report, and neither in the county court nor in the circuit court was any exception taken to their report on the ground that the commissioners who acted were not the persons appointed by the county court. This objection, therefore, is not available here. The commissioners' report shows fully what conveniences would follow from the opening of the road. They also report certain inconveniences, and the fair construction of their report is that they found no other inconveniences than those they report. Taking their report and their amended report together we see no ground for the position that the commissioners did not report in favor of the road. After giving the reasons for their conclusions, they say: "We report in favor of said route for said reasons." In another place in their report they say, "after examining the way proposed, we surveyed and located the following way as the most suitable way for said road." The old road is not discontinued. The county court has simply opened a new road from the Philpot house to the mouth of Pitzer street. The evidence heard in the circuit court showed that the old road was on low ground and very bad to travel a large part of the year. It also showed that with the bridge over the creek at the mouth of Pitzer street the new road will be a great public convenience to the people of the county. The record shows that the county court, realizing the necessity of the road, has built the bridge, and while no witness testifies to this, and it is stated in the record only in the opinion of the circuit court in overruling the motion for a new trial, still, from the facts proved, we should presume that if the county court had not done this it would build the bridge as soon as the road is legally established. On the whole case we do not see that there was any substantial error in the proceedings.

Judgment affirmed.

Ky.App. 1906.
CHAMBERLAINE ET AL. v. HIGNITE ET AL.
97 S.W. 396, 30 Ky.L.Rptr. 85


     

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