Jochum v. Henry Bickel Co.

146 Ky. 73 | Ky. Ct. App. | 1912

Opinion of the Court by

Judge Carroll

Affirming.

'This' is an appeal from a judgment enforcing a lien upon the property of the appellants for the improvement of the carriage-way on Ellison avenue, between Krieger and Spratt streets, in the city of Louisville. The property of appellants is situated on the south side of Ellison avenue, between Kreiger and Spratt streets. The portion of Ellison avenue that was ordered to be improved extends from the center line of Kreiger to the center line of Spratt street. The property on the south side of Ellison avenue, between these two streets, is in the form of a rectangle, while the property on the north side of Ellison avenue is in the shape of a triangle. The street south of Ellison avenue and running parallel with it is called Charles street, and the square between Ellison avenue and Charles street is divided by an alley through the center, the alley being'160 feet from Ellison avenue and the''same distance from Charles street. Thé street immediately north of Ellison avenue, which is called Reutlinger avenue, does not run parallel with Ellison avenue, but forms ah angle of 25 degrees with Ellison avenue, the apex of this angle being almost at the intersection of Spratt street and Ellison avenue, the base of the triangle at Kreiger street being some 250 feet. In assessing the cost of Ellison avenue on the south, the city assessed all of the property between Kreiger and Spratt streets to a depth of 160 feet, but in assessing the property north of Ellison avenue the city only assessed an area in the shape of a triangle, the depth of which at the base at Kreiger' street was 125 feet and diminishing to zero at Spratt street.

Appellants complain that they were discriminated against in this assessment, because their property on the south of Ellison avenue was assessed throughout its entire depth of 160 feet for the making of the avenue, while the property on the north side of the avenue was only assessed to the depth of 125 feet at one end, diminishing as before stated to zero at the other. In other words, the assessment complained of includes one-half of the property south of Ellison avenue, between it and Charles street, and on the north one-half of the property, between Ellison and Reutlinger avenue; but, in view of the fact that the property south of Ellison avenue is in the shape of a parallelogram 320 feet deep formed by Ellison avenue, Kreiger, Charles and Spratt streets, while the property on the north side of Ellison avenue is in the shape of a triangle 250 feet deep at the base, only one-half of which was assessed, the property assessed on the north is a great deal less than that assessed on the south.

It is the contention of counsel for appellants that practically the whole of the triangle formed by Reut-linger and Ellison avenues should have been assessed for the improvement of Ellison avenue. The lower court, however, was of the opinion that only one-half-of the triangle should be assessed for the improvement of Ellison avenue, leaving the other half to be assessed for the improvement of Reutlinger avenue.

It was the intention of the Legislature in the enactment of sections 2833 and 2834, of the Kentucky Statutes, relating to the original construction of streets in cities of the first class, to equalize as nearly as might be the burden of the assessment, and, where the property is laid off into regular squares, there is little difficulty in so adjusting the assessment as that the burden may be borne with approximate equality by all of the property owners. But, when a street or avenue set apart for origiilal construction is bounded on one side by a regular square, and on the other side by a parcel of land in the shape of a triangle formed by the location of two streets, there is of course more difficulty in adjusting fairly the assessment. We think, however, that in such a case the rule of equality should be observed as nearly as may be, and-this the court endeavored to do in bisecting this triangle so as to subject to the improvement of Ellison avenue one-half of it, leaving subject to • the improvement of Reutlinger avenue the other half. It is,' of course, apparent that if the whole of this triangle should be assessed, as contended by counsel, for the improvement of Ellison avenue, that the whole of it should- likewise be assessed for the improvement of Reutlinger avenue. The result would then be that all.of the property in the triangle between these twp avenues would be burdened -with a double assessment — one for the improvement of Reutlinger avenue and the.other for the improvement of Ellison avenue. ■ • • - ■

The situation in Louisville Railway Company v. Southwestern Construction Company, 24 Ky. Law Rep., 2380, was very much like the one here presented, as will be seen by the map accompanying that opinion, and, in that case an assessment based substantially upon the same principle as that applied in this case was adopted. See also Fidelity Trust & Safety Vault Co. v. Voris, 110 Ky., 315.

Judgment of the lower court is affirmed.