#### Winston & Company v. Clark County.

(Decided December 18, 1917.)

Appeal from Clark Circuit Court:

1. Highways — Counties—Statutes.—Sec. 4325, Ky. Stats. (Ed. 1909) imposing the duty on those causing damage to public roads by unusual use thereof, to repair the damage, is declaratory of the county’s authority to regulate or limit the use of the roads.

3. Highways — Use — Counties — Authority —• Damages. — Neither a county nor its officers has authority to limit the extent of the usual or ordinary use of a public road by any part of the public; and it is the duty of the county to repair any damage resulting from such use.

:3. Highways — Use—Counties—Contracts—Damages.—A county may in advance, legally contract with a party about to make an unusual use of its public roads for the repair of such damage as may result from their unusual use.

-4. Highways — Contracts—Construction—Damages.—Damage as used in a contract between a railroad contractor and a county by which the contractor agreed to repair certain roads, bridges and culverts, if damaged as a result of the transportation thereover of the contractor’s equipment, construed to mean the damage resulting from unusual use by the contractor.

*4485. Highways — Usé.—What is an unusual use of a public road is im- • possible of exact definition, hut it refers to the character and not the extent of the .use, and must he determined from the facts and circumstances of each case.

6. Highways — Trial—Damages—Instructions.—In an action for damages for the unusual use of a public road, an instruction author-? izing a recovery for any damage done to the roads resulting from, defendants’ subcontractors and others hauling for them, held erroneous and prejudicial because it includes damage resulting t»> the roads from both usual and unusual use.

PENDLETON & BUSH for appellants.

J. P. WINN and S. T. DAVIS for appellee.

Opinion op the Court by

Judge Clarke

Reversing-

Winston '& Company, a partnership, had a contract with the Louisville *&*Nashville Railroad Company to construct á new branch line of railroad from Winchester, in Clark county, to Irvine, in Estill county, and had sublet portions of the contract to other contractors:

In order to reach their respective portions of the proposed railroad, these sub-contractors had to haul their equipments from Winchester, over the roads and turnpikes of - Clark county, and Winston *&*Company asked permission of the county judge and road supervisor for such use of the roads, in this letter:

> “Winchester, Ky., June 10.

> “Judge J. H. Evans,

> “Mr. D. H. Haggard, Road Supervisor,

> Winchester, Ky.

> “Gentlemen:

> “Referring to the conversation of the writer with. Judge Evans, wTe request that you grant to our subcontractors, Johnson & Briggs, also, Sturm & Dillard, the privilege of moving their steam shovels and plant, over the county road to their work. This movement of' steam shovels, etc., will be on temporary track which will be laid on cross ties. There will be no contact with the roads of the wheels and owing .to the distribution, of the weight there will be no excessive pressure on the-road by the cross ties at any point. Such material as. is not moved on the railroad track will be transported in. wagons in the usual way.

> *449“Our contractors propose to use a steam road roller facilitating moving the shovels, etc. This road , roller will, of course, tend to improve your roads and can do them no damage. ■

> Our contractors will use every precaution to prevent any blocking of the traffic and while it might be unavoidable for a brief period to keep the road open at the point where the shovels are, this delay of traffic would probably not exist for more than one hour and probably there will no interference with traffic at all. While we see no reason for any damage being, dope to your road, we will hold ourselves responsible and repair immediately any damage that might be done. This being the only means of getting the plant on the railroad work we trust that you will grant this favor and give us authority to use county roads.

> “Tours very truly,

> “Winston & Company,

> “By B. D. Trimble.”

In response to this request, the following letter was sent them:

> “Winchester, Ky., June 13th, 19131

> “Messrs. Winston & Company,

> Winchester, Ky.

> “ Gentlemen:

> “In answer to yours of June 10th, relative to moving steam shovels and such other material as is necessary to the building of the railroad from Winchester to Irvine, Ky., we see no other way for Messrs. Johnson & Briggs and Sturm *&*Dillard, sub-contractors, to get their shovels and material to place of operation except over, the-turnpike road. We.ask that the contractors use every-precaution to protect the road and to use especial., care' to protect, the traveling public, and we hope very náuch they will use the automobile trucks, you spoke about, in transporting the material besides the steam shovels and-also the roller in transporting the shovels. ' .:

> “Tours very respectfully,

> “J. H. Evans,

> County, Judge.

> “D. S. Haggard,

> Boad Supervisor.”

*450Shortly thereafter and when the sub-contractors were ready to use the roads, the following contract was executed:

> “This contract made and entered into this 25th day of June, 1912, by and between the Fiscal Court of Clark County, Ky., party of the first part, and Winston *&*Company, a firm, parties of the second part.

> ‘ ‘Witnesseth: That the said first party hereby agrees that the said second party and their sub-contractors shall have the right to do all hauling or such other like use as may be necessary in the construction of the portion of the L. *&*N. Railroad which is being built by said second parties in Clark County, Kentucky, over the turnpike known as the Winchester, Ruckerville and Vienna Turnpike, or any other public road of Clark County. The said party however hereby grants said right to the said second parties, only upon the terms and conditions and for the consideration expressed in this contract.

> “Said second parties agree and bind themselves to take proper and suitable care of, and to protect the travel or traveling public on said roads during the period of their use of same. They further agree to immediately repair said roads, or any part of them, or the bridges , and culverts thereon, as to damage done or caused by them or any sub-contractors at any time they are notified by the Road ■ Supervisor of Clark County to do so; said repairs to be made in accordance with the directions of said Supervisor. They further agree that upon completion of their work under their contract on said railroad,- or upon cessation of their work upon same, to immediately put' the said turnpike and other roads, wherever the same has been used by them and all bridges and culverts as to any damage done or caused by them or any sub-contractors, in as good condition as they are in at the present time and to the satisfaction and approval of the Road Supervisor. They further agree and it is understood by both parties, that this contract shall become fully binding only upon the signature of both parties, and upon the execution by the said second parties of a bond for the sum of $10,000.00, with surety to be approved by the County Judge, that it will faithfully; comply with the conditions of this - contract.

> “Clark County,

> “By J. U. Evans, P. J. C. C.

> “Winston & Co.,

> “By Roswell D. Trimble.”

*451A bond was executed by Winston & Company in tbe sum of $10,000.00 for tbeir performance of tbe contract.

After the sub-contractors bad completed tbeir contracts and on July 25, 1914, Clark county brought tbis suit on tbe bond to recover under tbe contract for damages done by tbe sub-contractors, not only for damage done in moving tbeir equipments from Winchester over tbe county’s roads and turnpikes to tbe railroad right of way, but also for all damages done by use of the roads by tbe sub-contractors, tbeir agents and employes., and any one else for them, in hauling with ordinary wagons and trucks, as well as with wagons and trucks of extraordinary capacity carrying unusually heavy loads. In other words, the county sought to recover for both such uses of tbe road as were unusual in character and for excessive and, in fact, all use, of an ordinary character. After demurrer to tbe petition bad been overruled, defendants answered admitting tbe execution of tbe contract and bond, but traversing tbe other allegations of tbe petition. A trial before a jury resulted in a verdict and judgment against defendants for $5,000.00, from which tbis appeal is prosecuted.

Defendants ask a reversal upon two grounds, as follows : First, that tbe contract is void, because *ultra vires;*second, if valid, tbe contract is limited to uses unusual in character for two reasons: (a) such is its meaning properly construed; and (b) such isi tbe limitation of tbe authority of tbe county, if any, to contract with reference to the use of tbe public roads.

Without attempting to define tbe powers of tbe county, through its fiscal court and road supervisor, to control and manage its public roads, or the authority of tbe fiscal court to grant rights in the roads which could be exacted under powers of eminent domain, subjects not here involved, we shall confine our discussion strictly to tbe contract before us, and tbe powers of tbe county and its officers with reference thereto.

, Section 4325, Kentucky Statutes (1909 Edition), then in force, although since repealed, is as follows:

> ■ “Any corporation, company or individual who may, by unusual use of a road, materially damage tbe same, shall repair all damages caused by tbe use of such road or roads. Tbe supervisor or overseer of roads shall, at any time when necessary, notify said corporations, companies or individuals of tbeir duty as provided in .this section; aud should tbe said parties so notified fail, in a reasonable length of time, to be fixed in tbe notice, to *452make suck repairs, suck parties skall ke deemed guilty of obstructing tke public roads, and skall be subject to a fine not exceeding one hundred dollars, to be applied to road purposes.”

While tke statute is certainly not tke only autkority of tke county, or its officers, to control or manage public roads, and probably is not tke source but rather only a penal statute declaratory of tke county’s authority to regulate or limit tke use of tke roads, nevertheless, it does, in our opinion, correctly indicate tke limit' of tkat autkority -without, in any way, abrogating any civil remedy by injunction or for damages, or tke common law remedy, by indictment, for an obstruction amounting to a nuisance. CommonwEaltk v. I. C. R. Co., 104 Ky. 366; Commonwealth v. American Telephone & Telegraph ,Co., 84 S. W. 519; Commonwealth v. Beales, 119 S. W. 813; Christian County v. Rankin & Tharp, 2 Duv. 503; Lawrence County v. Chatteroi R. Co., 81 Ky. 227; Greenup County v. Maysville & B. S. R. Co., 88 Ky. 659; L. & N. R. Co. v. Whitley County, 95 Ky. 215, 44 A. S. R. 220; Leslie County v. Southern Lumber Co., 89 S. W., 242; Commonwealth v. Prall, 141 Ky. 560.

It will be noticed that tke statute does not make tke unusual use of a road illegal nor prohibit suck use, but makes it illegal arid punishable to fail, upon notice, to repair tke damages consequent upon suck usé; it was not, therefore, an illegal use of'tke roads to move the steam shovels and other equipment over them-, if done with proper regard for the rights of others, any more tkari it would be illegal to move a house along a public way, which might or might not be illegally done, but either suck use, even though done in a legal manner, is so unusual as, under tke statute at least, to make any member! of the public liable, civilly for tke repair of any dairiagé to tke road resulting from suck unusual use, and criminally, for a failure, upon notice, to repair. Tke civil right which tke county could enforce after tke damage was. done, it unquestionably had tke right to protect when tke fact was not merely suspected, but established, that damage would result; and tke execution of this contract, we aré quite sure, is sufficient proof tkat tke parties thereto agreed tkat injury to tke roads would result from tke eontémplated unusual use and we shall so treat it; arid we are not concerned with any question of whether or not the county could have exacted tke contract and bond, or what would have been its remedy if they had not been executed.

*453We feel equally safe in saying, -without citation of authorities, that neither the county nor its officers had any authority to limit the extent of the usual or ordinary use of a public road by any member of the public. He may go and come as often as he likes, and any damage that may result from such use is but ordinary natural wear and tear, the duty to repair which is by law imposed upon the public through its officers and not upon the individual.

Therefore, it seems to us quite clear the county could legally contract for the repair of such damage as would result to the public roads from the unusual use contemplated by the' defendants and for which they were liable, but that the county was without authority to place restrictions upon defendant’s right to use the roads in an ordinary or usual manner, no matter how extensive that use might be, or to impose a liability for such use; and it was likewise without authority to grant or to withhold permission, for any ordinary or usual use of the roads by defendants, or any member of the public, different from that enjoyed by all, or to make any binding contract with reference thereto.

In view of the fact that the contract, by its terms, seems to apply only to ordinary hauling and contains no reference whatever to any contemplated unusual use of the roads by defendants, which the correspondence and the circumstances leading up to its execution show it was intended to cover, and relieve it from apparent illegality, it is manifest the contract is ambiguous, as asserted by defendants in their offered amended answer, which the court would not allow to be filed.

The contract, when construed in the light of the authority of the county to make it and of the correspondence and circumstances leading up to its execution, can only be held to mean and to obligate the defendants to repair such damage as resulted from their unusual use of the roads. Just what is an unusual use of ej, road, as contemplated by the statute, is probably impossible of exact definition in advEince and must be determined on the facts and circumstances of each case, but certain it is that the word unusual refers to the character and not to the extent of the use.

The lower court did not so construe the contract or the statute, as is evidenced by the rejection of defendants’ amended answer, the admission of evidence and the instructions given-and refused. We need, however, refer only to the instructions given. A- recovery was author*454ized for any damage done to the roads by defendants' sub-contractors, their agents and employes and independent contractors hauling for them; and this, under the contract, was proper had it been confined to damages resulting from unusual uses by such parties, which was not done, hut instead a recovery was permitted for damages from any and all hauling by these parties, usual and unusual. To the extent the instructions permitted a recovery for ordinary and usual uses of the roads, for which defendants were not liable, they were, erroneous and prejudicial; as was also the admission-of evidence of such uses.

Wherefore, the judgment is reversed and the cause remanded for a new trial consistent herewith.