186 Ky. 438 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
The city of Louisville is a city of the first class, and the manner of reducing its limits, or extending them by the annexation of territory, which is contiguous to its present boundaries, is governed by the provisions of sections 2761 to, and including 2764, Kentucky Statutes. On the 5th day of October, 1918, in accordance with the provisions of the above mentioned statutes, the general council of the city, adopted an ordinance, providing for the annexation to the city of something in excess of eight thousand acres of land, which included two towns, one of which was of the fourth class, and the other of the fifth class, and each of which contained over two thousand persons. The population of the entire territory,
Several grounds are urged for the reversal of the judgment, but, we do not deem it necessary to consider but one. The court, over the objections of the plaintiffs, gave to the jury, two instructions, one of which is as follows:
“(1) If the jury shall believe, from the evidence, that the addition of the territory, described in the evidence, to the city, will be for its interest and will cause no manifest injury to the persons owning real estate in the territory sought to he annexed, they will find for the defendant the city of Louisville, hut, that, if the jury shall believe from the evidence, that the addition, of the territory, described in the evidence, to the city, will not he for its interest and well cause manifest injury to the persons owning real estate in the territory sought to be annexed they should find for the plaintiffs.”
The second instruction defined correctly the meaning of the term, “manifest injury to the persons owning real estate in the territory, sought to he annexed.”
The statute, which prescribed the method of an action of this kind, and defines the issues, which must he submitted to the jury, where seventy-five per centum of
It is very clear, that in accordance with the provisions of the statute, an annexation of territory to a city of the first class, and where seventy-five per centum of the freeholders of the territory, sought to be annexed, have not remonstrtaed, can not, lawfully, be effectuated, unless two states of case exist; the one is, that the annexation will be to the interest of the city, and the other is, that the annexation will cause no manifest injury to the persons, who own real estate, within the territory sought to be annexed. Unless these two states of case concur, the annexation can not be made. If the annexation will be to the interests of the city, but will cause manifest injury to the freeholders of the territory, proposed to be annexed, the annexation can not be made. Neither can it be made, if it will cause no manifest injury to the freeholders of the territory, proposed to be annexed, but will not be to the interest of the city. The purpose of the statute is to protect the interests of the city, and also those of the freeholders in the territory, which is the subject of the proposed annexation. Hence, the city was not entitled to succeed unless the annexation would be both for its interests, and would cause no manifest injury to the freeholders of the territory to be annexed, and, hence; the plaintiffs were entitled to defeat the annexation, if it was, either, not for the interests of the city, or would work manifest injury to the freeholders of the territory, proposed to be annexed. The instruction as worded, correctly stated the city’s rights to a recovery, if the evidence warranted it — that is, it was entitled to have the annexation made and confirmed, if it was to its interest and did not cause manifest injury to the freeholders, who resided in the territory, proposed to be annexed. It, however, denied, to the freeholders their grounds of defense to the proposed annexation, or