126 Ky. 477 | Ky. Ct. App. | 1907
Lead Opinion
Opinion of the Court by
Reversing.
This action was instituted by the city of Frankfort, a city of the third class, to enforce a. lien upon
Section 3449 of the Kentucky Statutes of 1903, which is a part of the act relating to the government of cities of the third class, provides in part that: “The common council shall have power to pass ordinances to require the improvement of streets and alleys, subject to the mode and manner herein designated, either by grading and paving, or by grading, paving and macadamizing, or graveling, guttering, curbing and paving, or planking of sidewalk, any portion thereof, not less in length than one block, or the whole of any street or alley now established, or which may hereafter be established, or by guttering, curbing, paving and grading any number of feet, not less than a block, upon either or both sides of any street where the same shall be necessary to complete such class of improvement on any square or street. * * * That the council may require by ordinance the improvement of any street or alley simply by grading or graveling or macadamizing, or may require by ordinance the whole of any street to be improved by grading, graveling, or macadamizing, guttering, curbing and paving or planking the sidewalk, the whole or any part not less than one block of any street.” The only authority for the improvements here made
It is impracticable to divide the territory which, includes appellee’s property into squares or blocks, or lay off streets and alleys, and the construction contended for would deny the city the right to improve the appellee’s property at his expense or compel him to do it. Although property north, south, east, or west of appellee that was susceptible of being laid off into blocks and squares might-be improved at the cost of the property owners, and appellee derive benefit and! advantage therefrom, he would escape entirely th'e burdens of the city government made necessary ini the improvement of its sidewalks and streets. We do not believe this construction either reasonable or proper. The purpose of the Legislature in using the expression “not less than a block,” which appears .three times in the section was evidently to require the city, when it undertook to improve streets or alleys, to improve not less than a block in territory divided into squares or blocks, or, if not so divided!, to improve not less than a block in distance. To illustrate: Under this section, if the city desired to make new sidewalks, curbing, and guttering in a new locality divided into blocks, it could not require one property owner to improve his property and relieve the adjacent property owner in the same block, but
We have not been able to find any case directly in point, although a somewhat similar question arose in the case of Gibson v. O’Brien, 6 S. W. 28, 9 Ky. Law Rep. 639, where the court had under consideration the section of the statute supra. In that case the property owners resisted the attempt to enforce a lien upon the property upon several grounds; one of them being that there was no block or city district adjacent to or abutting on the property; that the territory embraced constituted no block or part of a block. In respect to this contention, the court said: “As to the remaining question necessary to be considered, if it be conceded that the charter permits the improvements of any part of a street equal in length to one block, then it is apparent from the testimony that the distance, on each side of Broadway street, from Churchill avenue to the railroad, or to Enders avenue, is equal to two blocks. Some of the blocks in the city are a much greater distance in length than others, but looking to the average, and there are at least two blocks f‘i;om the beginning of this improvement to its terminus. The length is nearly 900 feet. The definition of a block is not given by the charter, and whether in the sense used a block is constituted by having a street on each side, as a square surrounded by streets, or that the improvement is not to be less in length than that of the average block, still in either event, the charter has been complied with. ”
It is further insisted for appellee that, as the answer denied the execution of a contract for the improvement, and the appellant with this denial in the record had the cause submitted for judgment on
The judgment is reversed for proceedings consistent with this opinion.
Rehearing
Extension op Opinion bt
Overruling petition for rehearing Dec. 6, 1907.
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. The petition for rehearing is overruled.