128 Ky. 524 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
This action at law was filed int the Daviess circuit court by appellee Hope against the city of Owensboro for the recovery of damages alleged to have been sustained by him1 by the lowering of the established grade in constructing a macadam roadway opposite his prop
A city authorized to establish, grade, and regrade the streets-within its territory assumes a certain public duty with respect to. these highways. Its judgment or discretion as to the time.when and as to the manner in which the highway shall be improved .is generally beyond review, and absolutely so .unless in the plan or manner of making or maintaining the improvements it acts with culpable negligence. When.a strip of land is dedicated, or is acquired by condemnation, for the purpose of a highway, it is implied that it may be graded so far as may be necessary to fit it for the purposes for which it was set apart; and, in either case, it will be presumed that the dedicator, or the jury in awarding compensation under the writ of ad quod damnum, have estimated the inconvenience of the owner and injury to his remaining property likely to ensue from the necessary and proper grading of the surface. And, until the municipality has once exercised its right to grade the street, the adjacent lot-owners have.notice that its surface is subject to such change as the municipality may order in the fair exercise of its discretion when it sees proper to improve the highway. ...
Some authorities hold that the duty of a municipality to grade its streets- as may be necessary is a continuing one, and, when the-power-is. granted by the Legislature, can not be abrogated by contract or act of estoppel. Smith’s-Modern Law of Municipal Corporations,- section .318.; Elliott, Streets and. Roads, 343 et
Another question is presented. Appellee and his vendors had maintained their improvements on the lot in question made with reference-to the natural grade of the street for more than 15 years. It is argued from this fact that the city had thereby* by a kind of acquiescence, established the natural grade as tlie permanent grade of the street. But we think there is a wide and essential difference between a municipality’s acquiring a right of way for a street by prescription, and being estopped by a lapse of time from improving the right of way or street. Laches of public officers are not generally accounted against the public. Particularly ought it not in this matter; for concededly it was within the discretion of the municipal council when the public welfare demanded, and its resources
Other objections to the judgment assigned as errors by appellant need not be noticed, as it follows from what has- been said that there can be no recovery byappellee in this case in any event. •
Judgment reversed. Remanded for proceedings consistent herewith.