165 Ky. 840 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
Defendants, George Lynn and Ms wife, Delina Lynn, live on Clayton Avenue in the Pinnell addition of Georgetown. Alleging that the residence of defendants was in the City of Georgetown, the City Of Georgetown brought this suit against the defendants to recover certain taxes claimed to be due. The defense was made that the property in question was not located in the city. Trial before a jury resulted in a verdict and judgment for the defendants. The city appeals.
The boundaries of the City of Georgetown were fixed by an act of the General Assembly, which was approved and became a law in the year 1880. Acts 1879-1880, Chapter 392, page 357. Section 1 of that act is as follows:
“That the corporate limits of the town of Georgetown be and are established as follows: By running a line on each side of Main Street, and parallel to the same at a distance of one hundred and fifty poles from its intersection with Hamilton Street; also a line on each side of Hamilton Street, and parallel thereto, at a distance of one hundred and fifty poles from its intersection with Main Street, the corners of said boundary being the points where these lines intersect; also by a line begin
Whether or not defendants’ property is within the city limits depends on the proper location of the last course, to-wit: “Thence with said road to .the point where it strikes the above-mentioned southern boundary line.” The evidence shows that if the Lemon’s Mill Turnpike Boad be followed absolutely, it never intersects the southern boundary line, that is, the line parallel with Main Street and 150 poles therefrom. The reason for this is that a short distance from said southern boundary line the road turns. According to the city’s plat, the line runs with the Lemon’s Mill Turnpike Boad until it reaches the point where the road turns away from the southern boundary line. From that point a line is run to the southern boundary line. According to the survey and plat made by defendants, the southern boundary line is run to a point where it is claimed it meets the old Lemon’s Mill Boad and from there it runs to the point of beginning.
The court instructed the jury that if they believed that the residence of the defendants is situated within the limits of the city, as defined in the act .of the Legislature read in evidence, then they ought to find that defendants were residents of the city, and unless they so believed, they ought to'find that they were not residents, of the city. To this instruction the city objected and ex-, cepted. After a peremptory instruction in its favor was refused, it asked the following instruction:
“The court instructs the jury that if in surveying the boundary of the City of Georgetown it was found that the survey would not close by following the northern boundary of the Lemon’s Mill Turnpike as called for-by the act of the Legislature establishing the boundary of the City of Georgetown, and read to you in evidence, and the northern boundary of said turnpike was a well-marked .and defined boundary, then, in establishing and locating said boundary it was proper to> follow said northern boundary of said turnpike from the point
The city insists that the trial court erred in refusing to give this instruction, while the .defendants argue that it should not have been given because it was, in effect, a peremptory instruction in favor of the city.
While there is some evidence to the effect that there is an old Lemon’s Mill Road running off from the main turnpike road, all the witnesses agree that the Lemon?s Mill Turnpike road, as now established, has been in existence for a number of years and was in existence at the time the act of the General Assembly became a law. There is no disagreement in regard to the facts submitted, to the jury by the offered instruction. In other words, the location of the line, according to the contention of the city, if its theory of making the survey is proper, is admitted. The same is true of defendants’ survey. While, ordinarily, the location of a survey is for-, the jury, yet, where the location of the lines, according to each theory of a survey, is not disputed and the proper method of making the survey is. the only question-involved, the question is one of law for the court and- not of fact for the jury. Pendergrass v. Louisville & Nashville Railroad Company, 164 Ky., 740. It was the evident purpose of the Legislature to fix the Lemon’s Mill Turnpike Road as the boundary of the city at the' place in question. Under these circumstances, it is not a proper method of surveying merely to extend the southern boundary line to a point near the beginning corner and then run- a line to the 'beginning corner. The road Ibeing a well fixed and established line, the road should-' be followed until it turns away from the last corner and from that point the line should be run to the last comer, so as to close the survey. It has been held that when-a
Judgment reversed and cause remanded for proceedings consistent with this opinion.