193 S.W.2d 143 | Ky. Ct. App. | 1946
Affirming.
Nineteen years ago, in 1927, Louisville directed the construction of a portion of Frankfort Avenue extending from the former boundary to the new eastern boundary of territory annexed to the city in 1922. Perhaps this opinion will finally settle the question of the apportionment of the cost. As one of the chancellors who has wrestled with it well said, "The case presents a knotty problem." The condition is unusual. Frankfort Avenue at this point is abutted on the north by the right of way of the Louisville Nashville Railroad Company, and adjacent to that, on the north, is a short parallel street called Arterburn Avenue. Thus, there are two parallel streets with the railroad between them, a space of only 66 feet. The more complicated question is whether Arterburn Avenue is a "principal street" within the contemplation of the statute prescribing that original construction of a street in a city of the first class "shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned *741
* * * by the director of works, according to number of square feet owned by them, respectively * * *. Each subdivision of the territory bounded on all sides by principal streets shall be deemed a square." There is further provision that when the contiguous territory is "not defined into squares or principal streets, the ordinance providing for the improvement * * * shall state the depth, not exceeding 500 feet, on both sides of said improvement to be assessed for the cost of making the same." Section 2833, Kentucky Statutes, now KRS
In an action brought by the owners of property on the south side of Frankfort Avenue, the court, Judge Barrett sitting, on November 25, 1929, set aside the apportionment of the cost made by the initial ordinance and directed that another assessment be made, which was done. Then in another action filed by Breslin, the contractor, to foreclose an apportionment lien, the court, Judge Allen sitting, on November 16, 1933, set aside both the initial and subsequent apportionments and directed that the area to be assessed should extend to a line midway between Frankfort Avenue and Randolph Avenue on the north and an equal distance on the south. This was upon the conclusion that neither Gardiner Avenue nor Arterburn Avenue was a "principal street," and upon the equities and justice of the case. We reversed that judgment because some of the owners of property affected were not before the court. Breslin v. Hancock,
Arterburn Avenue was laid out on a plat of subdivision, triangular in form, which was and is divided into customary but irregular squares, in the year 1891. It is 40 feet wide and 1,600 feet long and bounded on the south by the railroad right of way. It is a dead-end street on the west, being stopped up by reservoir property of the Louisville Water Company. It is blocked at the cast end by the property of the Masonic Widows Orphans Home; but at this end another street of the subdivision, Fenley Avenue, leads from it at a sharp angle in a northwestwardly direction, the same also being a boundary street of the subdivision. It would seem that Fenley Avenue is but little more than an alley. There are three north and south streets through this subdivision intersecting Arterburn Avenue, and crossing the railroad tracks to Frankfort Avenue, which is the main artery and thoroughfare in this part of the city. Those streets are Claremont, Blackburn and Carlisle. Nearly all the houses erected in this area front on these north and south streets. However, there are four or five substantial residences fronting Arterburn Avenue at the east end. It is paralleled on the north by Randolph Avenue, some 500 feet distant. This east and west street and some alleys are used only for passing to and from the north and south streets and for entrance into the side or rear of the residences, except those five fronting on Arterburn Avenue.
An issue was made as to whether Arterburn Avenue ever became a public way of the city. Appellant concedes the dedication but denies there was an acceptance. *743
It was shown on the plat of the subdivision recorded in the office of the clerk of the Jefferson County Court in 1891. At that time Frankfort Avenue was the Shelbyville turnpike at this point. The plat bore the endorsement: "The streets and alleys as herein shown are hereby dedicated to the public use. Mechanics Trust Company, Trustee, by Attilla Cox, President." This area was annexed to the city in 1922. Section 2832, Kentucky Statutes, KRS
The question of whether Arterburn Avenue is a principal street is more difficult. If it was such a street at the time, it cannot be crossed in establishing the assessable district. Fidelity Trust Safety Vault Co. v. Voris' Executors,
The general and indefinite term "principal streets" used in the statute, Section 2833, in so important a matter as the assessment of the cost of public improvements has vexed the courts and many times raised the question as to what the term contemplates since it was first used in 1873. See Stengel v. Preston,
In the Ouerbacker case, supra, a certain public way designated as "Unnamed Street" was held to be a principal street, although the classification was influenced by the fact it had been so regarded in making some previous street cost apportionments. Photographs of different points of that street are filed in this record. It would appear from the location of Arterburn Avenue, its physical condition and general use, which we have already described, together with photographs taken at different points, that as compared with the "Unnamed Street," it is quite certain that this street should be declared of the same class. In view of the ordinance establishing the area to be assessed with the cost of the improvement of Frankfort Avenue along at this point, and the decision of the chancellor upon all the evidence finally presented in the case, both of which facts are given weight, we are of opinion that Arterburn Avenue should be declared a principal street.
The argument of the appellant is persuasive that the consequence of classifying Arterburn Avenue as a principal street places an unequitable burden upon the owners of property in the 33 foot strip south of Frankfort Avenue and permits all those north of it, except the *746
Railroad Company, to escape paying anything although they have gained and have enjoyed the use of the improvement. He cites Hammon v. City of Louisville,
The judgment is affirmed.