71 S.W.2d 988 | Ky. Ct. App. | 1933
Reversing.
Ashland, Ky., is a city of the second class. Its general council by ordinance provided and entered into a contract with Hunt-Forbes Construction Company for the construction of a portion of Thirteenth street abutting the property of Taylor Hicks and Sarah Hicks. After the street was constructed, the general council by an ordinance apportioned the cost at $7.43 plus per foot, or $944.70 for one of their lots and $598.06 for another. The validity of the ordinance, the manner of making of the contract for the improvement, and the proceedings of the general council concerning the street improvement, are not questioned. When making the apportionment and arriving at the cost per foot, the city included the cost of constructing a retaining wall, $2,950.10 for services of an engineer on the entire project, $1,847 for inspection of the work, $325 for abstracting, and the cost of constructing and repairing 1,000 feet of sewer. The amounts included for the costs of the abstracting, inspection, and engineering are not disputed. The aggregate amount of the cost of the sewer is disputed.
This action was instituted by the city and the contractors to enforce the statutory lien which exists in such cases to secure the costs apportioned to the property of Hicks and wife. In addition to seeking to surcharge the apportionment of the costs of the retaining wall and the other four items, Hicks and wife set up a counterclaim for the taking of a portion of their lots for the construction of the street. A decree was entered denying them relief. They appeal.
Their argument that the widening of Thirteenth street was not an original construction was answered by this court in Huddleston et al. v. City of Ashland,
Respecting the cost of the sewer that was included in the apportionment of the cost of the improvement, section 3105, Ky. Statutes, authorizes a city of the second class to construct sewers in, on, along, or under the streets, alleys, or highways of the city, and to assess the entire cost thereof, including intersections, upon lots and lands in the neighborhood of the sewers, which may be benefited thereby, according to the benefits received, and to levy a special local tax on such lots and lands for the cost of such improvement so assessed thereon. The general council is expressly required to fix and determine by an ordinance what lots and lands are benefitted thereby, and in like manner to fix and determine the amount of tax to be levied upon the several lots or lands so benefited. This section sets out in detail how such ordinance shall be passed and the sewer tax shall be collected. Rich v. Woods,
Before the property abutting may be charged with the cost thereof, its construction must be ordered in the manner prescribed by the statutes. Dodd v. Hector Sons,
Respecting the items of abstracting, inspection, and engineering, included in the cost of the street improvement and apportioned against the abutting property owners, the general rule is "only such costs as enter into construction or doing the work can be included in the total against abutting property." See City of Marion v. Paris,
Finally it is argued by the city that the act of the general council approving the apportionment of the cost of the street against the property owners is conclusive against them, and that they cannot, after the approval thereof by it, dispute the apportionment. This rule obtains when the cost of the improvement, or the cost of doing the work only, is included in the total cost apportioned, and not where unauthorized, illegal, or erroneous items are arbitrarily included by the general council. The court has the power to correct the apportionment, and purge it of unauthorized, illegal, or erroneous items. Lindsey v. Brawner, 97 S.W. 1, 29 Ky. Law Rep. 1236; Herndon v. Brawner,
The claim of the Hicks that the city used a portion of their lot, without their consent and without compensation, in the construction of the street improvement, cannot be asserted as a defense or counterclaim in this action to enforce a lien against their property to satisfy the cost of the street improvement. Bayes v. Town of Paintsville,
Wherefore the judgment is reversed, with directions to deduct from the cost of the street improvement the items of abstracting, inspection, and engineering, with the privilege to the parties to show the definite amount of the cost of the labor and material used in the *404 construction of the sewer, and, when sufficiently shown, the court will deduct the costs thereof, and for proceedings consistent with this opinion.