180 Ky. 242 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
By this suit the appellee, plaintiff below, seeks to enforce a lien against the property of appellants, defendants below, to the extent of apportionment warrants issued to it for the contract price of improving Madison street in the city of Louisville between the center line of 35th street to the center line of Carr’s lane. The property of the defendants abuts upon the improved portion of Madison street, and the work was done by the plaintiff under a contract duly entered into after all prior steps had been taken by the council as required by law in making street improvements at the expense of abutting property owners.
The legal question presented is that made by the second paragraph of the answer, which alleges in substance that in the specifications of the ordinance requiring the improvement it is provided that in a portion of the street to be occupied by the street railway between the. tracks and two feet on the outside of each rail the material to be used should be granite blocks, and that other portions of the street for its entire width should be improved with bituminous concrete pavement; that the granite blocks provided for the space to be occupied by the street railway track and for two feet outside of each
A demurrer filed to that paragraph of the answer was sustained, and defendants declining to plead further the cause was submitted and judgment was rendered granting the relief sought by the petition, and to reverse it defendants prosecute this appeal.
This principle is conceded by counsel for appellant. They insist, however, that the averments in the pleading demurred to are sufficient to show that the city council in the instant case did not in good faith exercise its discretionary powers for the benefit of the public and the property owners along the street in requiring the use of granite blocks for the purposes alleged and not for the betterment of the street, and that such averments are sufficient to show the presence and not “the absence of fraud or collusion” on the part of the city council. In support of their contention we are referred to the cases of Lambert v. Thornberry; Denton v. Carey-Reed Co.; Marz v. City of Newport; Town of LaGrange v. Overstreet, supra, and the case of Barfield v. Gleason, 111 Ky. 491.
It must be admitted that- the respective contentions upon the point under consideration present to our minds a close question, and one not entirely free from difficulty, but we do not regard its determination as being essential to the upholding of the judgment appealed from.
A rule equally well 'established in this state in suits of this character is that the property owner will not be
This rule is not denied by the defendants, but it is insisted that it is in the nature of an estoppel, and that such defense can not be enforced upon demurrer but must be pleaded in order for the party relying thereon to obtain the benefit of it. This court, however, in the case of City of Louisville v. Cast, supra, held that such conduct on the part of the property owner constituted a waiver of any right which he might have to resist the collection of the price of the improvement as apportioned' to his property rather than an estoppel against him.
In the cage of Caperton v. Humpick, supra, it was held that a mere objection made by the property owner to the contractor at the beginning’ of or during’ the progress of the work was insufficient to save him from the consequences of the waiver, and that in order to do so be should manifest his objections by some character of legal proceeding having for its purpose the stopping of the work, unless a valid reason existed for his failure to do so. It is true the defense therein was that Breckinridge street which was being constructed was not a public street, but defendants stood by and permitted the work to be completed without taking steps to test that question, and in its opinion this court said:
“If Breckinridge was not at the time a public street, then the contractor who built the bridge as well as appellee who made the improvements were simply trespassers, and appellants might have, by legal proceedings, stopped construction of both, and it seems to us good faith required them to do so, if they did not intend to abide by and avail themselves of the benefit thereof, and thus impliedly dedicate the street if not directly.”
The granite blocks complained of are suitable for and much used in the construction of streets, and while it might be more expensive than other materials, and perhaps not as suitable for the purpose, still such questions under the authorities, supra, are in the absence of fraud and bad faith, for the determination of the governing authority who is authorized to have the work done, and its motives or purposes in having it done in a particular manner or with a particular material, if not prohibited by law, and the material is suitable for the purpose, will not be inquired into, especially if the work is completed without proper objections from the property owner.
It was upon this ground that the demurrer was sustained, as we note from the court’s opinion in the record, and because of the reasons stated we are disinclined to interfere with his rulings, and the judgment is accordingly affirmed.