139 Ky. 739 | Ky. Ct. App. | 1908
-Reversing.
London, the county seat of Laurel county, is a city of the sixth class. Jarvis L. Jackson and Mayme F. Jackson (the latter being an infant) are the owners of a lot of land in London fronting on Main street. In this property the mother of the infants, Maggie E. Dyche, owns a dower interest, and her second husband, Á. R. Dyche, is the guardian of his step-daughter, The board of trustees of the town of London duly and legally passed an ordinance for the improvement of Main street by making a flagstone sidewalk five feet in width in front oil the property owned by the appellants. This ordinance is numbered 104. Afterwards, ordinance No. 104 was amended by ordinance No. 112; the amendment being to strike out the words “not exceeding a square.” With this exception ordinance No. 112 is in all respects the same as ordinance No. 104. By the terms of the ordinance it is provided:
“That if the owners of said property in said square and along said street, fronting mid abutting on Main street as aforesaid, shall fail f-.r thirty days after the passage and publication of tins ordinance to enter upon the construction of said walk in good faith, it shall be the duty of the street supervisor to advertise by notice printed in a newspaper published in said town, that on a day to be nan e 1 in said notice, at least ten days from the publication of said notice and up to one o’clock p. m. on the day named, sealed bids will be received by the street supervisor for the construction of the aforesaid sidewalk according to plans above set forth.”
After the passage of this ordinance, the appellants, through A. R. Dyche, contracted with J. N. Russell
After the issues were completed by appropriate pleading, and the evidence taken, the case was submitted to the chancellor for final adjudication. The chancellor found, as a matter of fact, that the appellants owned only six hundred and forty-six feet of ground fronting on the improvement, and awarded Mrs. Millie McHargue, the assignee of the contractor, a personal judgment against them for six hundred and forty-six dollars, with interest at the rate of six per cent, per annum from the 12th day of March, 1904, until paid-; and to secure the payment of this, it was held'that the assignee'had a lien on the property of the defendants fronting on the improvement, which was enforced in the judgment; he also held that the work was not constructed in accordance with the contract and ordinance, and was.really worth only
We think the contention of the defendants, that Main street, being a part of the old wilderness road, belongs to the county, and that the city could not legally order its improvement, is not maintainable under the evidence. So much of the road or street as is involved in this litigation has been within the city limits since 1884, during all of which time the city authorities have considered it a public street of the city, and maintained it as such. The county makes no claim to the road; nor has it, within the time mentioned, so far as this record shows, exercised, or attempted to exercise, any act of dominion over it, and we are of the opinion that so much of the road as lies within the corporate limits of the town constitutes a part of its highways over which it may exercise the dominion authorized by its charter. Moreover, it may be said that the sidewalk involved here is the third one that has been laid on this particular strip of ground since 1884.
The defense that the ordinance and contract were void because Lee B. McHargue, one of the trustees of the town, was the real beneficiary under them, is not sustained by the facts. The chancellor found that the evidence did not support this charge, and in his conclusion we concur. The evidence of the defend
The claim of the defendants, that the sidewalk, as laid, overlaps a part of their private property, does not seem to be supported by the facts. The evidence shows, as said before, that the sidewalk in question is the third laid on the same strip of ground, and one of the defenses of the appellants is that they had contracted with J. N. Bussell, under ordinance No, 104, to make the pavement which they now claim overlaps their land. This, of itself, would constitute a dedication of a small strip of ground belonging to the appellants, which it is now claimed was wrongfully taken.
There is no doubt that the defendants proceeded in good faith, under ordinance No. 104, to do the work themselves as authorized by its terms; and there is evidence to support the conclusion of the chancellor, that the further prosecution of the work under this contract was abandoned by the defendants, and the contract between them and Bussell rescinded. If they had constructed the pavement themselves under the contract between them and Bussell, the work would have cost them seventy-five cents per lineal foot; and this, of course, under their contract, they would have had to pay. Now, assuming that they are right in the position that the chancellor erred in reaching the conclusion that they had abandoned their contract with Bussell, still the judgment, in its practical outcome (so far as the amount is concerned) gives them precisely what they contend for on this branch of their defense. It is true, the contractor is given a judgment for one dollar per lineal foot;
We are of opinion that ordinance No. 112 was merely amendatory of ordinance No. 104, and that the work involved in this litigation was done under the original ordinance. The amendment made by No. 112 was, so far as this case is concerned, immaterial, and it may for all practical purposes be considered as void without any change being made in the rights of the parties under ordinance -No. 104.
But the court erred in awarding a personal judgment against the defendants. This procedure is under section 3706, Ky. Statutes, and being strictly in rem, it was error to award a personal judgment against the defendants for the improvement of the
For this reason alone, the judgment is reversed, with directions to the trial court to set aside so much of the judgment as awards a personal judgment against the appellants.