166 Ky. 679 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
In making the improvements under the ten year bond plan mentioned the town of Paintsville let the contracts for the work and issued and sold bonds for the purpose of raising the money to pay for it. By the terms of the bonds the duty of collecting the assessments from the property owners is imposed upon the city, which pledges its faith and credit to exercise all legal means to enforce their collection. Its relation to the matter is, therefore, .analagous to that of a trustee, the bondholders being the cestuis gui trustent.
It appears that the appellant, F. M. Bayes, owns three parcels of real estate in the town of Paintsville .abutting streets paved and in which sewers were constructed, the first parcel lying on Court street, the second on Second street, and the third on Second and Court •.streets; and that each parcel was liable to an assessment tax for the paving of the street it abuts and construction of the sewer therein, and was assessed its proportionate part of such cost according to value; the amount assessed against the first parcel of real estate being $152.42, the amount assessed against the second parcel, $118.03, and the amount against the third parcel, .$26.66.
Appellants having refused to pay these assessments, br any part thereof, this action was instituted by the appellees, Town of Paintsville and its board of trustees, for the recovery thereof and to enforce against the lots, respectively, liable therefor the liens allowed by statute .as security for such assessments. Prior to the institution of this action there had been instituted in the same court by the appellants an action in which it was sought do enjoin the town of Paintsville and its. board of trus
By the petition in the action brought by appellants and their answer to the petition in the instant case, the validity of the assessments in question was attacked and the right of the appellee to subject the property, or any part of it, to the payment thereof denied. The attack upon the validity of the assessments also put in issue the validity of the several ordinances under which the work of improvement was done, the manner of their passage,, the letting of the contracts for the work and the manner in which the work was performed; but by the production of copies of all the ordinances, contracts, and writings, showing the proceedings Thereunder, and other evidence found in the record, the performance of the work and the manner in which it was done, we are convinced that the whole proceedings, both as regards the validity of the ordinances, contracts, improvements, and the character of the work done in making the same, were planned and executed with unusual care. This conclusion enables-us to waive consideration of the immaterial matters appearing in the voluminous record, and brings us to the consideration of the questions necessary to be determined.
First, it is insisted for appellants that the second parcel of real estate, mentioned as lying on Second street,, is not subject to assessment for the improvement of that, street because it does not abut the street. The basis, for this contention is that Mary Bayes, wife of the appellant, F. M. Bayes, owns a strip of ground eight feet-in width, extending along Second street, which abuts the-street and lies between it and the remainder of the lot' yet owned by F. M. Bayes. The facts shown by the evidence are that when the purpose of the appellee city to make the improvements in question became known, but before the work on the improvements began, the appellant, F. M. Bayes, by deed conveyed to his wife the eight-foot strip of ground in question, reserving in the deed the use of it as a means of ingress and egress to and from the remainder of the lot, upon which he then had and now has his residence, and providing that no fencing or side
The assessment cannot be defeated by such a scheme. If allowed, it would, in effect, nullify the act of the legislature giving municipalities authority to make such improvements at the cost of abutting property owners and place an undue burden upon those who had not resorted to such a scheme for a like purpose. The question, in. the aspect here presented, has never been passed on in this jurisdiction, but in 28 Cyc., 1133, we find a statement of the law which we think applicable:
“Conveyances to Evade Assessments. Liability of land for an assessment attaches from the passage of an •ordinance ordering an improvement, and will not be affected by a subsequent conveyance; and a colorable sale •of the portion of a lot abutting an improvement, with intent to avoid an assessment, will not operate to exempt the part retained.”
We, therefore, concur in the conclusion reached by the circuit court, that the lot in question, exclusive of the strip conveyed the wife, is, notwithstanding such conveyance, subject to the assessment.
Another ground of defense relied on by appellants is that the assessment of abutting property for the .construction of a sewer is unauthorized and that the sewer •on Second street, where abutted by their lot, is larger than that connecting with it. As to the first contention it is only necessary to- say that section 3706, Kentucky Statutes, confers upon the board of trustees of a town •of the sixth class power to construct sewers as well as .streets, and also provides that the expense incurred in] •doing so may be paid by a local assessment upon abutting, -property, not exceeding fifty per cent, of the value of the ground, after such improvement is made, excluding the. value of the buildings and other improvements-upon
Tt is well settled in this jurisdiction that the plan, or method of improvement, as well as the necessity therefor, is a matter solely within the discretion of the legislative body, whose discretion in respect thereto is beyond review by the óourts, in the absence of a showing of fraud or corruption upon the part of that body in the adoption or execution of the plan. In the recent case of Town of Russell v. Whitt, 161 Ky., 187, one of the complaints made by the property owner was that the construction of the street abutting his property failed, in certain particulars therein alleged, to conform to the-contract under which the work of construction was to-be performed. In overruling that complaint we said:
“The complaint made in the petition that the construction of the street abutting appellee’s property failed, in the particulars therein alleged, to conform to the contract, may be eliminated from the case, because the work as completed was admittedly accepted by appellant’s board of trustees; and their judgment is conclusive in the absence of a showing that they were guilty of fraud of mistake. This rule is stated in the-case of Creekmore v. Central Construction Co., 157 Ky., 336, as follows:
“ ‘The defendants pleaded in their answers that the work (street construction) was not done in accordance-' with the contract and was in several respects defective. But the Council' had regularly accepted the work and. their action is conclusive upon the property owner in.
It is also insisted for appellants that a number of the items which enter into the apportionment for the work of improvement done were originally embraced in a contract for the same construction, let to J. H. Francisca, and which the appellee town, upon his insolvency, completed; and that such items are not proper charges in the assessment against their property. It appears that the work of construction, or a part of it, was originally let to Francisco, that he became insolvent and by reason thereof the town, acting under advice of its counsel, made a settlement with Francisco’s sureties accepting a specified sum by way of damages for his breach of the contract, which sum was applied to the further cost of the work; that the town took charge of the work and completed it without advertising for further bids. The work in question to the extent indicated having been done by the town itself, the provision of its charter requiring that contracts involving expenditures of more than $100.00 should not be made by municipalities except through competitive bidding, it seems to us, has no application. Under the embarrassing circumstances attending the failure of Francisco and his violation of the contract, the town could have relieved itself from the dilemma in no other way than that employed, and in so doing they minimized the loss to the greatest degree possible. We think it fairly apparent that this action, of the town did not increase to an appreciable extent the cost to appellants or other property owners, of the-entire work of construction, and it is also a well recognized rule of law in this jurisdiction that the burden is: on the property owner to show that a wrong basis of apportionment was followed, and he must allege and prove facts showing such to be the case, and that under the proper method of apportionment he would be required to pay less. Barrett v. Stone, 21 R., 669; Chalk v. Beville, 21 R., 1769.
The complaint of appellants that the work performed by the Dunn Construction Company under its contract with the city had been originally let to Francisco at a lower price, is, we think, equally unavailing. It is true that the Dunn Construction Company, under its contract, did some paving work upon certain streets where
In Horne, etc. v. Mehler, 23 R., 1176, which was an action to recover an assessment for street construction as in this case, the property owners pleaded that one J. M. McNaughton entered into a contract with the city to do the work in question and gave bond, but that without reason or right this contract was cancelled by the city and a new one made with one Gleason, by which the cost of the work was increased fifty per cent. They prayed that the amount of the work assessed against them in favor of Gleason be abated to that extent, but this complaint, upon being considered by the court, was held insufficient to constitute a defense.
In Gibson, etc. v. O ’Brien, etc., 9 R., 639, it was held:
“That a prior ordinance had been passed to do the work for less money constitutes no defense. That ordinance had been repealed; and, if not, the failure of the city to abide its contract under it is with the party to the contract who has sustained damages by its breach; .and, besides, reasons deemed sufficient by the city coun<cil existed why that contract should not be carried out. ’ ’
It appears from the record that the work of street and sewer construction here involved was done under three ordinances and as many contracts. That under an ordinance of June 18, 1906, was commenced by Francisco and completed by the . appellee town;. the sewers were constructed by C. P. Sanburn under an ordinance
In our opinion, none of the matters set up by the appellants’ answer in resistance of the assessments sought to be enforced against their property, constitute a valid defense, hence they were properly rejected by the circuit court.
Having thus disposed of the matters of defense relied on by the appellants, as their answer was made a counterclaim, it now becomes necessary to determine whether a counterclaim can be pleaded or relied on by the appellants in this case. The three items of damages included in the counterclaim are: (1) that by the construction of the street and sewer in front of their residence property, a stream that ran through it and from which they had been accustomed to supply their stock with drinking water, was diverted elsewhere, which resulted in the deprivation to appellants of the use of the water; (2) that there was such a defective construction of the sewer in the street in front of their property as prevented a connection with it by a private sewer from their residence; (3) that by reason of appellee’s abandonment of the contract with Francisco and the letting by it of the contract to the Dunn Construction Company, the cost of the entire work of construction was so increased as to unduly enlarge the apportionment of the cost imposed upon the property of appellants.
It may here be remarked that if appellants ’ counterclaim could be relied on, the above items of damage would not be recoverable upon the record presented. In the first place, the exclusive control given to th? authorities of a municipality over its streets empowers them to-fix the grades of the streets without liability for any damages occasioned thereby. The only instances in which the municipality can be made liable in damages to the abutting property owner from the establishing of the original grade of a street are such as result from such a negligent doing of the work as will interfere with the owner’s use of his property. Hope v. City of Owensboro, 128 Ky., 524; Ewing, et al v. City of Louisville, 140 Ky., 726.
This action was instituted by appellee for the benefit of the bondholders, against whom the claim to damages
The opinion in Bodley v. Finley, 111 Ky., 618, is decisive of the question under consideration. In that case the city of Louisville had ordered a street improved, and issued apportionment warrants which were delivered to the contractor. Suit was brought by the contractor to enforce a lien existing by virtue of the warrant. The property holder sued by the contractor held a note against the latter, which he asked to be permitted to set off against the assessment against his property, due upon the apportionment warrant. This court held that the note, under the circumstances of that case, was a proper matter of set-off, but it is declared by the opinion that a set-off, or counterclaim such as is relied on in this case, cannot be maintained in a similar action brought by a municipality. It is therein said:
“This brings us to a consideration of the question whether a set-off or counterclaim can be pleaded against a suit upon an assessment for local improvement. In Burdy v. Drake, 17 R., 819 ; 32 S. W., 939, the question was presented, but not decided, as the set-off there attempted to be pleaded was not sustained by the proof. In Dill. Mun. Corp., Section 810, it is said: ‘As to agreements between the corporation and a contractor to do the work the abutters or property owners on whom the expense falls are not parties, but are brought into direct relation with the proceeding for the local improvement for the first time when the assessment is made. An assessment is a tax levied by the corporation upon property to defray the expenses of the improvement, and the suit to collect it (though brought by the contractor under au
In Board of Council City of Frankfort v. Brislan, 126 Ky., 477, it was held that an abutting property holder could set up a counterclaim for damages against the city in an action brought by the latter to enforce an apportionment warrant lien against his property, but in the response to a petition for rehearing, following the opinion, it is said:
“In a petition for rehearing the point is made on behalf of appellant, that appellee should not have the right to assert, as against the city’s claim for street improvements, the counterclaim for damages. The improvement was not made by the city, but by a contractor, and the injury and resulting damage to appellee’s property, if any, was committed by the contractor. After completing the contract, the contractor assigned his claim to appellant, and the rule that would deny a property owner the right to assert a counterclaim or set-off against the city, if the work had been done by it, and it was seeking to assert its lien, does not apply. As assignee of the contractor’s claim, the city occupies no better position than the contractor, and appellee can set up against it any claim for damages that he could have asserted against the contractor. (Kentucky Statutes, sec. 474; Civil Code, sec. 19). The doctrine that the property owner may rely upon a set-off or counterclaim in a suit by a contractor is expressly decided in Bodley v. Finley, 23 Ky. Law Rep., 851, 64 S. W., 439; (111 Ky., 618). The petition for rehearing is overruled.”
It is manifest from the foregoing authorities that this court has fully recognized- the doctrine, that the property holder cannot in a state of case, such as is here presented, assert a counterclaim or set-off against the municipality in an action brought by the latter to en
The judgment appealed from dismissed appellants’ counterclaim, enforced the appellee’s apportionment liens, each as to the property against which it was asserted, and directed the sale of a sufficiency of each parcel to satisfy the lien against it. There is nothing in the record conducing to show any inequality in the assessments as made by the appellee’s board of trustees for the cost of the street and sewerage construction; and as the cost of the improvements apportioned to appellants ’ property seems no greater than the benefits conferred, and the record -discloses no error that we regard prejudicial to their substantial rights, the judgmen is affirmed.