70 S.W.2d 376 | Ky. Ct. App. | 1934
Reversing.
A demurrer having been sustained to the petition of the plaintiff as amended and the plaintiff having declined to plead further, its petition was dismissed and it has appealed.
From the petition as amended and the exhibits filed with it, it appears that in 1928 the appellee, a city of the fifth class, contracted with the appellant to build a number of streets within the municipality on the ten-year bond plan, and at the cost of the abutting property owner; that the streets were built and accepted by the city and the apportionment made for their cost against the abutting property; that as to one of these streets an apportionment was made against a certain lot in the sum of $1,112.90; that the owners of the lot resisted the assessment on the ground that the lot was not worth the assessment; that the issue thus raised was tried and was finally adjudicated by the Court of Appeals in the case of Thompson v. City of Williamsburg,
We are informed in brief that the lower court rested its judgment on the opinion of this court in the case of Castle v. City of Louisa,
In the case of City of Louisville v. Nevin, 10 Bush, 549, 19 Am. Rep. 78, a street was constructed under an ordinance and contract authorizing the work to be done at the cost of the abutting property. The street ran by a cemetery against which the court held there could be no assessment for the street. For so much of the cost of the construction of the street as could not be levied against the cemetery, the court held the city liable. We said:
"The city had complete authority to contract for the work but had no authority to make it a charge on the abutting property, and is therefore liable to the contractor for the price of his work."
To the same effect is City of Louisville v. Leatherman,
"When, by taking the proper steps, the General Council could have made the improvement at the cost of the owners of adjacent property, its power to improve the streets may be executed in that way, and the city can in no event be made liable unless it will have the right to proceed to make the property-holders liable; but if the nature or ownership of the adjacent property is such that no steps which could have been taken would have rendered it or its owner liable, then the city must pay for the improvement, or it will have as to such work no means of executing its general power to improve all streets."
If the city may be held liable where by no steps it could have taken could it have levied the apportionment against the abutting property, it should equally follow that it should be held liable where by no steps it could have taken could it have levied all the apportionment against the abutting property for such portion as it could not so levy, provided the city has the power, as here, to contract for the work. Otherwise, as pointed out in the Craycraft Case, a city might be powerless to construct a street because, forsooth, some small portion of it runs by property wholly or partially exempt. It would require a clear lack of authority to reach so anomalous *707 a result. It follows that even without the amendment of 1928 to section 3643-7 of the Statutes, the city was liable for such apportionment as it could not levy on the abutting property. The demurrer to the petition as amended should therefore have been overruled.
Judgment reversed for proceedings consistent with this opinion.