City of Louisville v. Stoll

159 Ky. 138 | Ky. Ct. App. | 1914

Opinion of the Court by

Chief Justice Hobson

Reversing.

The city of Louisville in 1872 under legislative authority issued bonds for the purpose of raising the grade of Fulton street east of Preston street. The work was done and was paid for out of the proceeds of the bond issue. The chief purpose of the work was to make a fill to protect the city from overflow; after the fill was completed, the street was improved with macadam; this was also paid for out of the proceeds of the bond issue without cost to the abutting property owners. The street was used asa street of the city from that time until 1911, when the city by proper ordinance ordered the construction of Fulton street from Mill to Cabel streets, the construction involving a granite pavement; the cost was apportioned against the property owners. This suit was brought to enforce the apportionment warrants. The circuit court dismissed the petition upon the ground that the work was reconstruction. The city appeals.

By section 2833, Kentucky Statutes, when the improvement is the original construction of any street, it shall he made at the exclusive cost of the adjoining property owners, to be apportioned as therein directed; and by section 2834 Kentucky Statutes., a lien on the respective lots shall exist for the cost of original improvement of public ways. In a number of eases construing this statute, we have laid down tbe rule that until tbe abutting property bas once been compelled to bear tbe burden, it bas not constructed originally tbe street, wbieb in justice to all other property owners within tbe city, and upon an equal basis under tbe statute, it should do. (McHenry v. Selvage, 99 Ky., 232; City of Catlettsburg v. Self, 115 Ky., 669; Lindsey v. Brawner, 97 S. W., 1; Sparks v. Barber Asphalt Co., 129 Ky., 769.) Were tbe rule otherwise certain streets in the city or certain parts of a street, might be constructed at tbe cost of tbe abutting property owners, while other parts were constructed at tbe cost of tbe city, and tbe owners of tbe abutting property thereon thus escape all liability for tbe improvement. It is true a different rule was laid down in City of Louisville v. Tyler, 111 Ky., 588, and tbe circuit court seems to have' followed that opinion. But that case was in effect disapproved in City of Catlettsburg v. Self; it is in conflict with tbe subsequent cases, and is overruled.

• Tbe conclusion we have reached makes it unnecessary for us to consider the other questions presented on tbe argument.

Judgment reversed and cause remanded for a judgment as above indicated.