City of Henderson v. Breckinridge

11 Ky. Op. 315 | Ky. Ct. App. | 1881

Opinion by

Judge Pryor;

If the statements contained in the answer filed by the city to the petition in which the injunction was obtained are true, the injunction granted the appellees should have been dissolved. The four acre lot is surrounded on all sides but one, as averred in the answer, by principal streets, and on that side by a public alley; and not only so, but the ground adjoining has been divided into- town lots, and many of them built upon, leaving the appellees with their lot enjoying all the privileges and benefits arising from the municipal government. It is not necessary that this four acre lot should have been partitioned, or actually laid off from the other lands of the appellees after the Act of 1867. This had already been done, whether in anticipation of the extension of the city limits is not necessary to enquire. At the time the taxes were imposed, as the proof conduces to show, this four acre lot was separated from the other lands of the appellees by public streets and alleys, and such being the case was embraced within the provisions of the act of 1867. Besides, from the testimony in the action under which the recovery of the taxes paid was had against the city, it clearly appears that the appellees were fully advised of their rights in the premises ; that an injunction had been obtained against the collection of taxes, and the action dismissed; and further the appellee, Breckinridge, says that- he knew they had no- right to collect. So in either state of case the judgment should have been for the city in the event the four acre lot is located with reference to public streets; and if the owners are enjoying the benefits of the city government, as is alleged in the answer, the injunction should have been dissolved. If the property, although not properly taxable, was necessarily benefited by the improvements made by the city around it, the taxes cannot be recovered back, although they may have been improperly levied; nor can a recovery be had if the plaintiffs, knowing their rights in the premises, voluntarily pay the assessment. Louisville v. Anderson, 79 Ky. 334, 2 Ky. L. 344, 42 Am. Rep. 220.

James F. Clay, William Lindsay, for appellant. M. Merritt, John Young Brown, for appellees.

[Cited, Brands v. Louisville, 111 Ky. 56, 23 Ky. L. 442, 63 S. W. 2.]

The judgment in each case is reversed and cause remanded for further proceedings consistent with this opinion.