Cake 27 — Proceeding by F. H. Allen, &c., Against W. J. Hopson, to Abolish Gates Erected on the Public Highway.

Dec. 7.

#### Allen, &c. v. Hopson, &c.

APPEAL FROM TRIGG CIRCUIT COURT — THOS. P. COOK, CIRCUIT JUDGE.

From a Judgment of the Circuit Court on Appeal from tiif. County Court Denying Relief ti-ie Plaintiffs Appeal.

Affirmed.

Highways — Erection of Gates — Removal—Powers of County Court —Evidence—Compensation.

*i*The power of the.- county. courts to abolish 'gates erected across a road under Kentucky Statutes. 1903, section 4297, authorizing such action after ten days’ notice to the occupant of the ' . premises, is limited to cases in which the gates were originally erected by permission of the county court under the provisions • of said section and section 4289., .providing for applications for the privilege of erecting gates across .roads, v.n.-'.

2. In proceedings to abolish gates, erected across- a--' roadmmdcr *216•Kentucky Statutes 1908, section. 4297, authorizing such action on - the part of the county court, as to gates erected by its permission, uncontradicted evidence that the gates1 were erected when the road was established and had been, maintained for thirty years or more without objection, created a strong presumption that when the road was established the landowner granted- the right of way upon tbe condition that he was to he permitted to erect and. maintain the gates.

3. In proceedings under Kentucky Statutes 1903, section 4297, authorizing the county court to abolish gates erected across a road by its permission, the best evidence of an agreement .between the viewers who laid out the road and the landowner that the latter should have the right to maintain gatesl across the road was the report of the viewers to the county court,' and, in the absence ‘of evidence showing the destruction or1 loss of such report, or of evidence that the agreement was. not reduced to writing, parol proof of such agreement was inadmissible.

4. The heirs of one who, in surrendering to the public a right of way through hisi land, reserved the right of erecting gates across the same can not he deprived of that right in a proceeding under Kentucky Statutes 1903, section 4297, providing for the removal of gates established across a road by permission of the county court, hut are entitled to be compensated for their loss under section 4292, providing for thel assessment of damages for land taken in laying out or altering a road.

5. A proceeding under .Kentucky Statutes 1903, section 4297, to abolish gates erected across a public road, in which the relief sought is denied on the .ground that the gates were not shown to have been erected under permission of the county court, and hence within the scope of the proceedings, is no bar toi another proceeding brought for the same purpose, if the read was in fact erected by permission of the county court.

SIMS & THOMAS' ano J. C. DABNEY, attorneys foe appellants.

The record shows, that á public road was established in this county from Cumberland church to Canton in July, 1869, and has existed ever since, across which appellee, W. J. Hopson, and his father before him have erected and maintained gates for their own use and convenience 'ever since the road was established. There is nothing, however, in the record conferring any easement, franchise or privilege on any one to erect or maintain gates' across said road.

3. We suggest that no easement, privilege or franchise, inhering in or placing a charge on land for a period longer than one year ban be created by parol contract. Barnes v. Beverly, 17 R., 586; *217Alt. Sterling, &e., Turnpike Co. v. Barry, IS R 937; Butt v. Napier, 14 Bush, 39.

2. The court helow erred in permitting witnesses to testify io conversations between J'oshua Hopson and the alleged commissioners that opened the road, (1) because there was no competent. proof that Joshua Hopson was at that time the owner of the land; (2) there was no proof that the alleged commissioners were ever appointed by the Trigg bounty court, or were authorized to negotiate with Hopson for the establishment of the road or the erection of the gates; (3) there was no evidence to show that the alleged commissioners ever reported their acts to the court or that the court ever ratified or approved any of their acts; (4) if said reputed commissioners made any contract with Joshua Hopson, it was in parol and is condemned by the statute of frauds; and for these reasons said evidence was incompetent.

3. The only condition precedent to the abolition of gates legally . placed across a public road is the promotion of the public good.

4. The maintaining of these gates is for the personal'; gain and convenience of appellee, and not for the public good.

5. The instructions' of the court to the jury were erroneous and misleading, and were not authorized by any evidence, written or parol, tending to show any authority' to Joshua Hopson or any one to erect or maintain these gates.

JOHN W. KELLY and R. A. BURNETT, attorneys for appellee.

1. We submit that the evidence conclusively shows that the public good does not require the removal or abolition of these gates, but, on the contrary, that it is. better for the public that the gates remain as' they are.

2. The evidence further shows that at the1 time the road was established Joshua Hopson then owned'the farm through which it ran, and only consented to give the road upon the condition that he have the right and 'privilege of putting up and keeping up two gates where, it entered and left his farm, which was agreed to by the commissioners appointed to establish the road.

3. We contend that the gates having been, erected and maintained by the appellee and those under whom he claims for more than thirty years, which claim has been accepted and recognized, by the county and the community interested therein, he is entitled to máintain them.

AUTHORITIES CITED.

Kjr. Stat., sees. 4297, 4298; Civil Code, sec. 606, subsec. 2; 11 B. Mon., 163; 5 Bush, 405; 7 Bush, 471; 79 Ky„ 323.

*218Opinion of tiif court .ire

JUDGE NUNN,

affirming.

It appears from the record that in the year 1869 a new road was established leading from' Canton'to Cumberland church, in Trigg county.' This new road Was established through, the lands of appellees a distance of 1 1-4 miles; Joshua Hopson, the father’of appellees, then being’ the owner of this land. This proceeding was instituted in the Trigg county court, under section 4297 of the Statutes of 1903, to cause the court to abolish two gates. ' It appears these gates were erected at ,the time of the establishment and opening of the road at the points of entering and leaving Hopson’s lands. The appellants proceeded upon the theory that the public good required the removal of these gates. The appellees made an issue with appellants, and contended that the public was benefited by the gates, rather than injured; that this road through jtheir farm was in the Cumberland river bottom, which, to a great extent, was overflowed each year by the waters .from that river; that if the gates wei*e abolished, and fences- erected on each side of the road, driftwood would accumulate and. mudholes would' be formed in the lane, which would make it inconvenient and. injurious to the traveling public; that with the' gates and fences to catch the driftwood and confine-the public'to. the roadlway, the traveling j ublic would be interfered with; that the gates were not kept closed except during the crop season,'and also in granting the right of way for public use. the right to erect and maintain the gates was reserved by Hopson when he granted the roadway to the use of the public. .Qn the other hand appellants show that the gates inconvenienced the public to a great extent; that .persons ifra-veling, the road are compelled to stop, and much of the time to alight from their horse's or veliicIes-'-and optai the gates, and''flUriñ'g the' crop season in driving stock to market along this road the owners *219were put to the expense of employing additional' hands to drive the stock through appellees’ farm to avoid injury' to 'the crops* and the loss of the stock. On this proof the county judge ordered1 the gates abolished.1 On an appeal to the circuit court and a trial by jury, it found a verdict in favor of appellees.- The evidence of appellants is silent on the question as to. how' and by what authority these gates were.erected. It was not shown.that the gates were permitted by the county, court to he erected- under the provisions of the statutes. By section 4297, Ky: St., 1903, it is provided: “The.county court may, after the occupant of the premises upon which. gates shall be erected; across a road has hadi ten days previous notice' of the proceeding- . . . order the gates repaired, removed, or abolished, if the public good requires it.” This.provision of the statute is the same, in substance, as contained in the statute in existence when this road was established. This statute authorizes the county court, on certain conditions- named therein, to remove or abolish gates which the. c-ounty court had permitted by order to- he erected by virtue of sections 4289 and the first part' of 4297 of the statute. The power and authority of the county court under section 4297 to remove or abolish gates depends upon the fact as to whether the. gates were erected by permission of the county court under the provisions of sections 4289 and 4297. If not so erected, the; court can not abolish them by proceedings, under-section 4297. Tf:a' person without any authority should obstruct the- public -road -by the erection of gates, he could he punished therefor'under- section 1241 of the statute, or by; indictment for the creation and maintenance of .a. nuisance.- Under such -a state' of ease it could not he contended that the; wrongdoer should; be -proceeded against under section 4297, and-, have the'county court to make an order...abolishing...the .gates-for; tire public good." Tn *220such state óf case, in addition to a fine, which might he imposed, any citizen might remove the obstruction — i. e., the nuisance — from the public highway, if it could bé done without committing a breach of the peace. ' The appellants failed to prove that the gates were erected across this road by permission and order of the county court by virtue of the sections referred to, and the proof without any contradiction show’s that the gates were erected at the time the road was established, and have been maintained for a term of 30 years or more without interference dr objection until this proceeding was instituted. These circumstances' create a strong presumption that when the road was established the owner granted the right of way upon the condition that he was to be permitted to erect and maintain these gates. The appellees introduced two witnesses, who stated that they were present in 1869 when the viewers weré performing their duties in reference to the establishment' of this road, and heard the agreement between them and Joshua Hopson, the farther of appellees; that Hopson agreed to and did give the right of way for the road without any charge, reserving the right to erect and maintain the gates; that the viewers accepted this proposition. This evidence was objected to, but the court overruled the objection. This evidence was not competent. There was no proof that this agreement was not reduced to writing. The presumption is that the viewer’s report to the county court contained this agreement. If so, it was the best evidence, and should have been introduced, if in existence, or within their power to produce it. There was no evidence showing the destruction or loss of‘this report, or the papers connected with the application' to open and establish this road; If appellees’ father in surrendering to' the public this right of way through his land reserved the right and privilege of erecting and maintaining these gates, *221then they can not be removed, and the appellees be deprived thereof, in a proceeding like this. In such a case the owners of the land are entitled to be compensated for their-loss by virtue of section 4292 of the statutes. It would be inequitable and unjust to a landowner to obtain from him land from which t‘o establish a road, and to avoid the necessity of erecting and maintaining two strings of fence he gives the la-nd without charge upon the condition that he be permitted to erect and maintain gates, and, after the road is established, then institute proceedings in the county court under section 4297 and abolish the gates, thus obtaining the land from the owner without any compensation. This would be a species of wrongdoing that was never intended or contemplated by the General Assembly, when enacting the statute. As stated, this section was only intended to authorize the county court to abolish gates when they have been erected by permission of the county court under the section named. It does not appear that appellees were permitted by the county court to erect these gates under the statute, but the presumption from all the evidence and circumstances shown in the record is that Hopson, in granting the land tQ the public, reserved the right to erect and maintain these gates. If it be the fact that the county court did grant the right to erect the gates under the statute stated, this proceeding would) not be a bar to another proceeding under' section 4297 to abolish them.

Wherefore the judgment of the lower court is affirmed.