112 Ky. 438 | Ky. Ct. App. | 1901
Lead Opinion
Reversing.
The appellee, contractors, brought this suit against appellant company for its proportionate share of the cost of constructing Hill street from Sixth to Seventh streets, in Louisville.
Various defences were interposed, and have been ably argued by counsel.
It was claimed that the work done was in violation of section 242 of the Constitution, providing that municipal and other corporations shall malee just compensation fos private property injured or destroyed, which shall be paid before such taking, or paid or secured at the election of such corporation or individual before such injury or destruction. The injury which it is contended resulted from the making of the street, appears to have been occasioned by a change of the street level. There is no claim for damages by reason of this fact, but the fact that the damages were not ascertained or paid before the street was made is pleaded as a bar to the contractors' right to enforce his lien for making the street. In the case of Barfield v. Gleason, this day decided, the exact question was passed upon, and it was held that the existence of such damages as a result of the change of the street level, while constituting a cause of action against the city, could not be pleaded in bar of the contractors' claim for making the improvement. The decision of the chancellor was in accordance with the court, holding that the proceedings were not void because of the fact that no steps were taken to fix the damage before the injury was done. Various other defenses made in this case, including the constitutionality of the proceeding under the 14th amendment to
The defense, that there was no benefit to the appellants’ 'property from the improvement was also decided adversely to its contention by the chancellor. The evidence, in connection with "the presumption of benefit arising from the legislative determination, seems to us to justify his conclusion.
We concur also with the chancellor’s conclusion as to the propriety of the apportionment of the cost of the improvement. The ordinance provided the depth upon either side of Hill street to which the tax district should extend, upon the theory that the contiguous territory was not bounded by principal streets. Under the evidence it appeared that the territory was so bounded, and that provision of the ordinance is invalid as in conflict' with the determination by the statutes a® to what property should be considered benefited by the improvements, and that in such case the cost should be borne by the property in the quarter squares contiguous to the improvement.
The ordinance, however, so far as it determined that the improvement should be made, was valid, and the apportionment actually made was against the property which ought to have been subjected, and in proper proportion; the only error being in the amount of the cost which was apportioned. Beck v. Obst, 12 Bush, 269. It appears that the territory contiguous to the improvement was naturally of a level surface, with only enough inclination to provide surface drainage. The right of way of the Louisville & Nashville Railroad Company crosses the street between the points designated for the improvement. The work consisted in part of transforming; the street at that point into
The city also has taken an appeal from the judgment against it for 10 per cent, of the face of the warrants, as increased cost of the work by reason of the five-year guaranty. The judgment was rendered in supposed compliance with the decision in Gosnell v. City of Louisville 104 Ky., 201 (20 R., 522) (46 S. W., 722). The guaranty clause in the contract here considered, however, was, in substance, the same as that considered in City of Louisville v. Mehler (22 R., 62) (56 S. W., 712), and.imposed no liability upon the city for that proportion of the-cost.
The judgment is therefore reversed upon both appeals, with directions upon the return of the case to ascertain what proportion of the cost of construction was occasioned by making the street a subway, with which the property of the appellant company should not be charged, and for such further proceedings, including further preparation,
Dissenting Opinion
dissents.
Response by Judge DuRelle to petition of appellant for rehearing:
With great force and' earnestness, counsel for appellant,, by petition for rehearing, contends that the principle on which this case was decided is that a subway under a rail-road crossing is not a street, within the meaning of the statute creating a lien on the property in contiguous squares; that the record show’s the exact point at which the street grade is changed, and the grade of the subway begins; and that, though the change of grade for some distance -along the subway does no material damage to the abutting property and its owners’ rights of ingress and egress to and from the public way, that fact does not make this part of the subway a street, or authorize the imposition of its cost as a burden on the abutting property. From this it is contended that the mandate should direct that the abutting property should be relieved of the entire cost of construction of the way from the point where the grade changes on one side of the railroad to the point of change on the other side. In addition, it may be urged, upon the same line, that while for a distance of upwards-of 100 feet from each end of the subway grade the lowering of the grade of the way is not only not injurious,, but may be considered beneficial, to the abutting property, -there is a point- at which it becomes in fact no street for the uses of abutting owners as a means of access to-their property, and is only usable by them, in common