Lula Cochran was George W. Simmons' daughter, and George was considered by many to be the wealthiest man in Bullitt County, so Lula was likely used to getting her way. She must have been upset when her mare was injured by barbed wire while running loose on the open ground of the Oxley Addition to Shepherdsville.
It's not clear who the man named Hancock was who strung up the wire, but it's likely he was either unavailable or unable to cover the costs of taking care of the horse, so Lula decided that, since the ground technically belonged to the city of Shepherdsville, she would get the city to pay for it.
When the town council refused, she had her lawyer husband, Tom Cochran sue them. Unfortunately for her, the Circuit Court agreed with the city and denied her claim. Still unhappy, she had Tom appeal the decision to the Court of Appeals. Below is the report of that appeal.
COCHRAN v. TOWN OF SHEPHERDSVILLE.
(Court of Appeals of Kentucky. Nov. 13, 1897.)
Municipal Corporations-Dedication of Streets — Liability Where There Has Been No Acceptance.
1. A municipal corporation which has never accepted, either expressly or by implication, the dedication of a street, is not liable for injuries to animals from the maintenance of a barbed-wire fence on the ground thus dedicated.
2. The mere extension of the limits of a town so as to embrace ground dedicated as a street is not an implied acceptance of the dedication.
Appeal from circuit court, Bullitt county. "Not to be officially reported."
Action by Lula Cochran against town of Shepherdsville to recover damages for injuries to a mare. Judgment for defendant on a verdict returned in obedience to a peremptory instruction, and plaintiff appeals. Affirmed.
Tom Cochran, for appellant.
WHITE, J. Appellant instituted this action in the Bullitt circuit court against the town of Shepherdsville, for damages caused by a mare of appellant being injured on a barbed-wire fence said to have been in a street in said town. The petition alleges that the fence was built by and remained in said street with the knowledge of the authorities of said town for four or five months. It alleges that the mare, by reason of her injuries, was rendered worthless, and was worth, when hurt, $100, and that, after the injury, the plaintiff had incurred much trouble and expense in attending to the wounds on said animal, of the value of $50, and claimed a damage, in these two sums, of $150. A general demurrer to this petition was overruled, and answer was filed, which denies any knowledge or information sufficient to form a belief as to the alleged injury; denies that any obstruction was so near or across a highway of the town as to cause the injury complained of; denies the value of the mare to have been $100, or damage in any sum, or that care and attention and medicine were furnished of the value of $50 or of any sum; denies that the town authorities knowingly or negligently permitted any alleged defects to be built or remain.
In a second paragraph, it is alleged that one Hancock built a fence of barbed wire and posts without any authority or permission from the governing authority of said town; and that said fence was not erected upon any property of said town, or upon any property under its control or authority, or upon any of its streets or alleys, or across any of its streets or alleys, but that said fence was built in a part of the town used as a common, and has never been under the control or authority of the town of Shepherdsville, and the town has never caused any streets or alleys in that portion of the town to be graded, opened, or in any way constructed for use, nor have the authorities of said town ever levied any tax upon the properly in that portion of the town of Shepherdsville, for any governmental purpose; and that the same has been used time out of mind by the public as a common until so fenced by said Hancock; and that it was upon this fence built by Hancock, if at all, that the mare was hurt. There was also a plea of contributory negligence on the part of appellant in permitting the said mare to run loose. To this second paragraph a demurrer was filed and overruled, and then a reply controverting every allegation material to the answer.
On the issue thus made, the case went to trial before a jury, and, at the conclusion of appellant's evidence, the court, on motion of appellee, gave to the jury a peremptory instruction to find for defendant, which was done. Judgment having been rendered in accordance with the verdict, the appellant filed reasons, and entered motion to grant her a new trial, which was overruled, and she appeals to this court.
The proof introduced on the trial, as shown by the bill of exceptions, shows that, some years ago, one Oxley laid off a plat of ground adjoining the town of Shepherdsvllle, making lots and streets and alleys, and sold lots in said addition to the said town, as it was called, but the proof does not show that this plat was ever put to record; that some years ago this Oxley addition was embraced in the new boundary, as fixed by a new charter of the town of Shepherdsvllle; and that the barbed-wire fence was over several feet in what in Oxley's plat was left for a street, and extended across an alley as laid off by Oxley; and that plaintiff's mare ran into same, and was injured. The evidence of plaintiff (for there was none other introduced) shows that the town of Shepherdsville had never levied taxes on any part of Oxley's addition for any purpose, and also that the lot owners had never listed these lots for town taxation.
It Is also shown that this street where the mare was hurt had never been graded or any work done on same by any person, but was the natural surface. In the testimony it is nowhere shown that the town authorities had ever accepted the dedication made by Oxley of the street, either by an express order or by any act that would imply an acceptance.
In Dill. Mun. Corp. § 012, it is said: "In order to charge the municipality or local district with the duty to repair, or to make it liable for injuries for suffering the street or highway to be or remain defective, there must be an acceptance of the dedication, and this acceptance must be by the proper authorized local public authorities. It may be express and appear of record; or it may be implied from repairs made and ordered [citing Gedge v. Com., 9 Bush, 61]; or knowingly paid for by the authority which has the legal power to adopt the street or highway; or from long user by the public."
In the case of Gedge v. Com., 9 Bush, 61, this court said: "A road or street dedicated to the public must be accepted by the county court or town, either upon their records or by the continued use and recognition of the ground as a highway for such a length of time as would imply an acceptance; and where a dedication has been made of the ground by deed, as in this case, the marking out of the street by order of the town authorities, connected with its use by the public as a street, would be an acceptance of the grant."
The proof fails to show in this case that the town authorities of Shepherdsvllle had ever accepted the dedication, either expressly or by implication. It was further held in the Gedge Case, supra: "The fact of the town limits having been extended so as to embrace the ground where the switch was constructed is not an acceptance of the benefit of the grant from Wall."
As there was no proof showing that appellee was bound to repair the street, or keep it free of obstruction, or to charge appellee with any damage for failure so to do, the circuit court committed no error in giving the peremptory instruction to the jury to find for defendant. Finding no error, the judgment is affirmed.
The Southwestern Reporter, Volume 43, January 10 - February 14, 1898, pp. 250-1
Alas, Lula had no choice but to accept defeat, this time.
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