Real Property (Nuisance): ROBBERIE V. VonBORKERN (SC 8/24/2006)

ROBERIE V. VONBOKERN
REAL PROPERTY:  Nuisance
2004-SC-000250-DG.pdf
TO BE PUBLISHED
AFFIRMING IN PART, REVERSING IN PART; ROACH
DATE RENDERED 8/24/2006

This was a dispute over access to an unimproved dirt road  in which the Appellants, Steve Roberie and Joyce Roberie, husband and wife,  appealed  judgment which determined that the road is a public road and awarded punitive damages of $5,000.00 to the primary Appellees, their  neighbors Robert VonBokern and Victoria VonBokern.

The Court of Appeals held that the suit was most appropriately characterized as an action for a declaration of rights pursuant to KRS 418.040. While the VonBokerns’ complaint unquestionably contained a claim for a declaration of rights, SC also believed it contained a tort claim-namely, that they were entitled to damages and injunctive relief from the Roberies for blocking a public road . The two causes of action are not mutually exclusive, and it was the tort claim that was submitted to the jury. Though the underlying tort was not described as such by the parties, the Suprem Court held the VonBokerns’ claim is valid and amounts to a private action for public nuisance.

The class of individuals that is eligible to maintain a private action for public nuisance is limited.  "[A] private individual has no tort action for the invasion of the purely public right, unless his damage is to be distinguished from that sustained by other members of the public."  Resatement Torts (2d).  "It is well established that an individual may bring an action to abate a public nuisance, when he has sustained or will  sustain damages of a special character therefrom, distinctly different from the injuries  suffered by the public generally." East Cairo Ferry Co . v. Brown,  25 S .W.2d 730, 731 (1930); see also Maxwell v. Fayette Nat. Bank of Lexington, 217 S .W. 690, 691 (1919).

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