119 Ky. 840 | Ky. Ct. App. | 1905
Opinion of the court by
Reversing.
By an act of April 18, 1890 (2 Acts 1889-90, p. 899, c. 902), amending the charter of the city of Lexington, it was enacted that thé general council might provide by ordinance for the construction and reconstruction of the streets of the city, and order a special assessment to be made by the city assessor on the property fronting on the street that was improved. The assessment was directed to be returned to the council, and, if confirmed by it after notice to the property holders, it became final, and the council was authorized to levy a special tax on the property sufficient to 'pay for two-thirds of the entire cost of the improvement; the other one-third to be paid by the city. A lien was given on the property for the special taxes, which were authorized to be collected as other taxes. The act then made the following alternative mode of payment for the improvement:
In the City of Lexington v. Crosthwait, 78 S. W., 1130, 25 Ky. Law Rep., 1898, it was held that, in case there was not a request by the abutting property holder, to the city to permit the adoption of the 10-year plan of payment, the statute made two-thirds, of the cost, and no more, a charge against the abutting property, and made it due when the work was completed and accepted; that the city could not, without the request of the lot owner, enlarge his liability by increasing it and extending the time of its payment for ten years; and that where the property owner did not request the adoption of the 10-year plan, and, notwithstanding this, the city adopted that plan, the statute of limitation ran in favor of the property owner from the time the cause of action accrued. But no question of estoppel was considered in that ease. The opinion proceeds on the idea that there was in that case no sufficient plea of estoppel. The question of estoppel is the only matter to be determined on the appeal now before us.
A lien was created on appellee’s property when the improvement was made under the ordinances- and was accept
Proceedings to enforce the payment of assessments made on property for the improvement of streets are governed by the same rules as other actions. It is true that, to create a lien on the property of a citizen, the statute must be complied with. But here there is nothing involved but the mode of payment for an improvement already made. If appellee had not wanted the 10-year plan followed, all he had to do was to go to the council and say: “You were mistaken about my requesting the 10-year plan. I will pay my assessment now' on the cash basis.” He was required to act in regard to this liability upon precisely the same principles as in the case of any other debt, and he can not be allowed to acquiesce in the mode of payment adopted by the
council until after the lapse of five years, and then rely upon limitation in bar of the claim. Richardson v. Mehler, 111 Ky., 408, 23 R., 917, 63 S. W., 957; Louisville v. Gast, 81 S. W., 693, 26 Ky. Law Rep., 412; Barber Asphalt Company v. Gaar, 73 S. W., 1106, 24 Ky. Law Rep., 2227.
Judgment reversed and cause remanded, w'ith directions < to overrule the deihurrer to the second paragraph of the answrer, and 'for further proceedings consistent herewith. »
Response to petition for rehearing:
The petition for rehearing assumes that there is an- irreconcilable conflict betwmen the opinion heretofore delivered in this case and the opinion in the City of Lexington v. Crosthwait, 78 S. W., 1130, 25 Ky. Law Rep., 1898. It is said in tlie opinion in this case, distinguishing it from Crosth
Petition overruled.