117 Ky. 779 | Ky. Ct. App. | 1904
Lead Opinion
Opinion of the court by
Affirming.
These three appeals are prosecuted on the same record. ■In the year 1900 an ordinance was enacted' directing the improvement of the carriage way of Frankfort avenue from the former city boundary line to Cavewood avenue extended; the cost of the improvement to be assessed against the property fronting on Frankfort avenue, and extending back to a depth of 195 feet. A contract was made with appellees Park & Co., for the improvement. The work was done, and was apportioned to the property owners on the basis set out in the ordinance. Suit was then filed against the property owners to enforce the apportionment warrants. The court held that the apportionment had been made on the wrong basis, and ordered a new apportionment; dismissing the action as to certain of the defendants. An appeal was taken from this judgment, and it was affirmed. Park & Co. v. Orth, 24 R., 2209, 73 S. W., 1015. The reason the apportionment was held bad was that it was held that the territory contiguous to the street was defined into squares by principal streets. Section 2833, Ky. St., 1899, provides: “When the improvement is the original construction of any street, road, lane, alley or avenue, such improvement shall be made at the exclusive cost of the owners of lots in each
The appeal of the Louisville & Nashville Railroad 'Company questions the liability of its right of way for any part of the cost of the improvement. Since the appeal was taken, the question so raised was decided adversely to the railroad company in Figg v. L. & N. R. Co. (116 Ky., 135, 25 R., 850), 75 S. W., 269, and L. & N. R. Co. v. Barber Asphalt Co. (25 R., 1024), 76 S. W., 1097. The court adheres to the rule laid down in those cases, which are conclusive here.
The appeal of the contractors questions the correctness of so much of the judgment as held the city of Louisville not liable for the interest on the contractors’ claim from the date of the first apportionment to the date of the second, the con
The other questions made arise on the appeal of the property owners. It is insisted for them that the court has no power to make a new apportionment on a new basis fixed by it; that the power .to levy taxes, and to define the territory on which they are levied, is legislative, and can not be exercised by the court! It will be observed, however, that the statute above quoted prescribes how the cost of the improvement shall be apportioned where the territory is defined by principal streets. The court, having held that the territory in question was defined by principal streets, simply carried into execution- the mandate of the statute, as the council should have done. This the court was authorized to do under the provision quoted, requiring that “the courts in which •suits may be pending shall make all corrections, rules and orders to do justice to all parties concerned.” When the territory is defined by principal streets, the statute determines on whom the burden of the tax shall be laid; and, this being fixed, there is no reason why the court may not be authorized to ascertain how much of the burden will
It is also insisted for appellants that there was a deviation from the contract. The facts about the matter are these: Frankfort avenue crosses the tracks of the Louisville & Nashville Railroad at an acute angle. The board of public, works thought it unwise tó construct the improvement across the railroad tracks at an acute angle. The railroad company proposed to build a crossing if it was made across the tracks at something like a right angle. The board of public works accepted, the pi*oposition of the railroad company, and it made the crossing as proposed, and the contractors then constructed the street to the crossing, on both sides of it. In order to reach the crossing on the west side, a slight deflection was made to the north. At. this point Clifton avenue runs into Frankfort avenue; and whether the improvement, as made, lies altogether on what should be called Frankfort avenue, or in part on Clifton avenue, is not very clear from the maps, as it is just at the intersection of the streets. Before its annexation to the city of Louisville, this part of Frankfort avenue was a turnpike leading out of the city; and, from
In Elliott on Streets and Roads, section 567, it is said: “The cardinal rule is that nothing shall be permitted that
On the whole case, the judgment of the circuit court seems to do justice to' all parties concerned, and it is therefore affirmed.
Rehearing
to petition for rehearing:
In the case of William Speeht v. Barber Asphalt Company (this day decided) 26 R., 193, 80 S. W., 1106, it was held, following Cooper v. Nevin, 90 Ky., 90, 11 R., 875, 13 S.W., 841, that, to produce equality of burden contemplated by the statute, cross-streets will be extended so as to intersect the street improved. The chancellor ofdered the commissioner to charge the quarter squares contiguous to the improvement according to the rule laid down in the. statute. The presumption is the commissioner did his duty, and that the judgment of the circuit court is right. It is insisted in the petition that part of the territory in contest is not defined into squares by principal streets. To illustrate, the maps filed do not show a street parallel ,to Frankfort avenue west
The petition for re-hearing is overruled.
Response of Judge Hobson to motion to correct mandate: In entering the judgment of affirmance herein the clerk entered' a judgment in favor of appellees awarding themi 10
The property owner is not personally liable for an assessment to pay for a street improvement. The property assessed is only liable. The proceeding toi enforce the assessment is strictly, therefore, a proceeding in rem or against the property. Meyer v. Covington, 103 Ky., 546, 20 R., 239, 45 S. W., 769; Barker v. South Construction Co., 47 S. W., 608, 20 Ky. Law Rep., 796; Woodward v. Collett, 48 S. W., 164, 20 Ky. Law Rep., 1068; Fehler v. Gosnell, 99 Ky., 384, 18 R., 238, 35 S. W., 1125; Bitzer v. O’Bryan, 54 S. W., 951, 21 Ky. Law Rep., 1310; Henderson v. Lambert, 14 Bush, 84, 30; Ky. St., 1903, section 2S34. It has been held by this court in a long line of decisions that 10 per cent, damages iwill not be awarded on the affirmance of a judgment in a proceeding strictly in rem, where the judgment has been superseded. Worsham v. Lancaster, 104 Ky., 813, 29 R., 969, 48 S. W., 410; Cornwall v. Fletcher, 9 Ky. Law Rep., 403; Ross v. Wilson, 7 Bush, 36; Wilson v. Pope, 14 B. Mon., 83; Woods v. Roman, 5 B. Mon., 145; Sumrall v. Reid, 2 Dana, 65; Talbot v. Morton, 5 Litt, 328; Hargis v. Mayes, 50 S. W., 844, 20 Ky. Law Rep., 1965.
The motion to correct the mandate in so far as it awards damages on the amount superseded is therefore sustained.