110 Ky. 315 | Ky. Ct. App. | 1901
Reversing.
On February 1.4, 1894, the general council of the city of Louisville passed an ordinance fixing the grade of Third street from the south line of Brandéis street to the north line of K streeet extended, and ordering the improvement of the carriage way 42 feet in width from a line 106 feet south of Brandéis avenue to the north line of K street. The territory contiguous to the improvement was mot defined into squares by principal streets, and the council, by ordinance, provided that the cost of the improvement should be laid upon the property lying on either side of the street to be improved, and within 200 feet of it. The improvement was made under the ordinance, and this suit was filed by the contractor to enforce his lien upon the property for his work. Third street runs substantially north and south. About 106 feet south ■of Brandéis avenue it forks. The west fork is known as “Old Third Street,” or “Park Place,” and has been a traveled way maintained by the city for many years. The east fork, known in the record as “New Third Street,” is the street ordered to be constructed. Appellant’s property’ on which the burden of this improvement was placed by the ordinance, lies west of Old Third street, or Park Place; and between it and the improvement is the street in. front of it, and also a lot of ground belonging to the Louisville Industrial School of Reform. It is insisted for appellants that the cost of the improvement can not be assessed against their property, as they do not front upon it, and that as the cost of maintaining the street in front of them, as well as part of the cost of maintaining Fourth street and Brandéis avenue, falls upon them, if they can also be assessed for the improvement of New Third street they
Sections 2833, 2834, Kentucky Statutes, are as follows:
“When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square to be equally apportioned by the board of public works according to the number of fee.t owned by them respectively, and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue, and not of flbe sidewalk. Each sub-division of the territory bounded on
“A lien shall exist for the cost of original improvement of public ways . . . for the apportionment and interest thereon iait the rate of six per cent, per annum against the respective lots. Payments may be enforced upon the property bound therefor by proceedings in court; and no error in the proceedings of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract; but the general council, or the courts in which suits may be pending, shall make all corrections, rules or orders to do justice to all parties concerned; and in no event if such improvement be made as provided for, either by ordinance or contract, shall the city be liable for such improvement, without the right to enforce it agaiinst the property receiving the benefit thereof.”
It wiill be observed that each subdivision of the territory bounded on all sides by principal streets- is to be deem(ed a square, and that the cost of the improvement of a street by original construction is to be apportioned in each fourth of a square equally. When the territory is divided into squares, each fourth of a square- is the basis of the apportionment. When the -territory is not defined into squares by principal streets, the depth on both sides fronting the improvement to be assessed for the cost of making it is to be defined by the ordinance. The statute does not
Preston v. Roberts, 75 Ky., 570, Stengel v. Preston, 89 Ky., 623 (13 S. W., 839), and Boone v. Nevin, 15 R., 548 (23 S. W., 512), are relied on to sustain the judgment. The reasoning of the first case supports the conclusion we have reached in this case. We fail to see in either of the other cases anything in conflict with it. The facts of those cases, under the statute there before the court, distinguish them from this case.
The city of Louisville is not a party to this appeal; neither is the Industrial School of Reform; and what their