141 Ky. 43 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
In 1909, the board of trustees of LaG-range, then a town of the sixth class, enacted an ordinance providing for the reconstruction of a sidewalk in front of the property owned by appellee Overstreet, and the removal of a locust tree owned by him that was standing in the sidewalk ordered to be reconstructed, the real purpose of the ordinance being to secure the removal of the tree. Thereupon appellee brought this action to enjoin the board of trustees from enforcing the ordinance upon the
We may say at the outset that the averment in the petition that filie ordinance is invalid for defeists in the title is no't pressed or even mentioned by the counsel for appellee as a reason for declaring that it should not be enforced, and so we do not think it necessary to further allude to this feature of the case. Especially so as an inspection of the record satisfies us that there is no defect in the title of the ordinance.
The question then before us is, the right of the board of trustees to order the tree to be cut down and removed. The tree is located on the main street of the town, and the sidewalk where it stands is used more than any other in the town. At the place where the tree is located the concrete sidewalk is eight feet wide and the tree is about two feet and four inches in diameter. It stands on the line of the sidewalk and curbing, two feet of it being on the sidewalk and four inches projecting over the sidewalk into the gutter. It is about thirty years old, and several years ago the top and one-half of the body was killed by a fire in adjacent property, but the remaining half of' the tree is alive, and we may assume from the evidence that it will live for many years. After the fire, the top was cut off, but a number of the branches put out, and in the summer time it furnishes for a part of each day some shade to the .hotel property. There are in the record photographs of the tree, taken in the winter time, but they clearly show that it is an unsightly and unattractive tree, and not capable of furnishing much shade. Fronting on the sidewalk where the tree is located is a hotel owned by the appellee, and there is some evidence that this tree is valuable and useful to the hotel on account of the shade it affords. On this street and in the square in which this tree stands, there are many other shade trees, but hone of them except the one.in controversy are locust, and it is shown that for a number of years the citizens of the town have been gradually and voluntarily cutting down the locust trees and planting in place of them other trees that furnish better shade and are more attractive in appearance.
Section 3704 of the Kentucky Statutes, which is a part of the charter of sixth class towns, provides in part that the board of trustees of such towns shall have the power to “pass ordinances not in conflict with the Constitution or laws of this Commonwealth or of the United States” and to “do and perform'any and all other acts and things necessary or proper to carry out the provisions of this chapter,and to enact and enforce within the limits of such town all other local, police, sanitary and other regulations as do not conflict with general laws.” Section 3706 gives authority “ * •* * to order any work they deem necessary to be done upon the sidewalks, curbing, sewers, streets, avenues, highways and public places of the town.” * * * And section 3709 confers power “* * * to cáuse to be removed any obstructions in the streets of the town.” * * *
It was under the authority conferred by these statutory provisions that the ordinance directing the reconstruction of the sidewalk and the removal of the tree was enacted. It will be observed that the statute vests large powers in the board of trustees, giving them wide discretion in the enactment of ordinances controlling and regulating the affairs of the town as well as the condition and improvement of its sidewalks, streets and highways. But, extensive as this authority is, there is the limitation and restraint upon its exercise imposed by well established principles of law that it must not be used in an unreasonable, arbitrary, capricious or oppressive manner, or to gratify malice or ill-will. If it is, the court will protect the citizen or class of citizens affected by •this unauthorized assumption of power, and prevent by its process the municipal boards from acting without the scope of their authority, or within the scope but in violation of the principle noted. But as the State has created these'political subdivisions, and delegated to them a part of its sovereign power, to be exercised in the govermental affairs
We have not treated as important the testimony in regard to the value of the tree to the adjacent property of appellee, as it does not seem to us that the value of the tree under the circumstances of this case should be allowed to affect the question of the right of the board of trustees to order its removal. Of course, there might be a case in which the value of the thing ordered to be removed or destroyed in connection with the circumstances under which it was allowed to be or remain where it was until the order of removal was made, would be a proper subject for consideration in determining whether or not tlie board of trustees acted in an unreasonable, oppressive or arbitrary manner, but the value
The views we have expressed are fully supported by the cases of Boyd v. Board of Councilmen of the City of Frankfort, 117 Ky., 199; Hall v. Commonwealth, 101 Ky., 383; City of Georgetown v. Hambrick, 127 Ky., 43; Chase v. City of Oshkosh, 81 Wis. 313; 15 L. R. A., 553; Tate v. City of Greensboro, 114 N. C., 392; 24 L. R. A., 671; Mt. Carmel v. Shaw, 27 L. R. A., 580; Hawes v. Chicago, 158 Ill., 653; 30 L. R. A., 225; Rosenthal v. City of Goldsboro, 149 N. C. 128; 16 Annot. Cases, 639; Yick Wo v. Hopkins, 118 U. S., 356; 30 L. Ed., 220; Wilson v. Sunmons, 89 Maine, 242; City of Atlanta v. Holiday, 96 Ga., 546; Vanderhunt v. Tholcke, 113 Cal., 147; as well as by Dillon on Municipal Corporations and other text writers On the subject.
But counsel for appellee insists that the judgment of the lower court is sustained by the opinion of this court in Pickrell v. City of Carlisle, 135 Ky. 126. If so. it is necessarily in conflict with what we have said. Although the Pickrell case presented the question of the right of the board of trustees to remove obstructions from the street, the facts as stated in the opinion are so radically different from the facts of this case that it could not well be controlling authority for the decision reached by the lower court. In cases like this, where it is difficult if not entirely impracticable to lay down any general principle that will fit all of them, the courts have uniformly ruled that the decision of each case' must largely rest upon the facts it presents. But, for the purpose of making it plain that there is no disagreement between the conclusion reached in the Pickrell case and this, we will state briefly the facts of that case that induced the court to hold that the action of the board of trustees was unreasonable and arbitrary. Pickrell in building a dwelling house on the line of the street began to build steps out in the street to enable him to get into the house, when the council ordered him to remove them. The court said:
“All the buildings on that block fronting Locust street are built on the line of the street, several of them being residences. The most of thém have steps and porches extending a foot ór so, to three or four feet, out on the pavément. The pavement along that block is 12 feet wide, 'and constructed of cement. * * * In addition to the foregoing, the proof discloses the following
Upon these facts, the court concluded the opinion in this way:
“The facts that others in the same block, and in other blocks, where the pavements were not so wide, were suffered and had been for a great many years, to maintain similar partial obstruction, is evidence that such steps were not unreasonable, but were a common custom iu that town. What is common is generally known by all, and would seem not to be an unreasonable course. The town might have prohibited such steps by a general ordinance of uniform application. As it has not done so, unless it shows that the particular obstruction complained of is in fact a nuisance, and is an unreasonable use of the public way under the conditions shown to exist there, appellant sought not to be singled out for discipline merely to vindicate a previously unused power. ’ ’
After a careful review of the evidence, looking at it from the standpoint most favorable to appellee, we are of the opinion that the board of trustees acted reasonablv, in good faith, and without any purpose to harrass, and so we conclude that the judgment must be reversed, with directions to dissolve the injunction and dismiss the petition.