Town of Bowlinggreen v. Hobson , 3 B. Mon. 478 ( 1843 )

Judge Breck

delivered the opinion of the Court.

A careful examination of the several statutes, bearing upon this case, brings us to the following conclusions:

1st. That the “act concerning the Townof Bowling-green,” of the 29th February, 1836, did not vest in the Trustees power and authority to cause any street or alley in said town to be paved or turnpiked at the cost and expense of the owners of lots fronting such street or alley, except upon the petition for that purpose, “of a majority of the owners of the ground, residing upon such street or alley, or of the owners of the most of the ground fronting upon such street or alley.”

The act referred to gives the Trustees the same power and authority upon the subject which the 13th section of “an act to incorporate the town of Frankfort,” passed 28th February, 1835, vested in the Trustees of Frankfort. There is some ambiguity in that section, which, we think, may have resulted from an error in the punctuation, making two sentences where there should have been but one; at any rate, we are of opinion that the proper construction of the whole provision does not vest in the Trustees authority and power to cause the streets or alleys to be improved at the cost and expense of the owners of the ground fronting them, except upon their application in the manner before stated. In this branch of the case, therefore, we entirely concur in the views and construction of the Court below.

The act of 1840, ccmcernipg tbs same.

2nd. The act of the 21st January, 1840, “further to regulate the duties of the Trustees of the Town of Bowlinggreen,” so far as it has reference to the improvement of the streets of said town, by grading and McAdamizing, and otherwise, at the expense of the owners of the lots upon any such street, provides that “the Trustees shall also have power to cause any street in said town to be improved in like manner, (by grading and McAdamizing,) whenever two-thirds of the owners of lots in said street shall desire it, and shall levy a tax on each lot, agreeable to its front on said street, to defray the expenses of such improvement on said street.”

It was the opinion of the Court below, that this provision, authorizing the Trustees to cause the improvement to he made, upon the application of two-thirds of the owners of lots upon the street, should control the action of the Trustees, and that, in effect, it superceded so much of the act of 1836, as made it the duty of the Trustees to proceed with the improvement upon the application therein prescribed. We should not be inclined to doubt the correctness of this construction, if the previous act had merely required application to be made by a majority of the owners of lots on the street sought to be improved. Under the act of 1836, in one instance, the Trustees were to act upon the petition of a majority of the owners of the ground, residing upon the street or alley, and in the second instance, upon the petition of the owners of the most of the ground fronting upon the street or alley. In the third instance, under the act of 1840, they were to act when desired by two-thirds of the owners of the lots upon the street; whether they resided upon the lot, as in the previous act, would be unimportant — nor does it necessarily follow that “the owners of two-thirds of the lots” would be “the owners of the most of the ground fronting upon the street.” The act of 1840 presupposes that the lots fronting upon the street would vary in extent, and hence the provision that “each lot was to be taxed agreeable to its front on the street.”

The construction given to the acts of 1836 and 1840. The application to the Trustees for the improvement of streets in Bowlinggreen must be for tire whole extent of the street, not a portion of it. The malting out and furnishing to the Trustees of Bowlinggreen by Skiles, of a map of the proposed extension of the town limits over hisland, was conclusive of his assent to such extension, and gave the trustees jurisdiction over dt, without any •conveyance.

In the absence of any repealing clause in the act of 1840, as to the previous act, or other clause restricting the action of the Trustees to the application of two-lbirds of the owners of the lots upon the street, to justify Us improvement, we are not inclined to give it that construction, but to consider the Trustees as authorized to act when applied to or requested in either of the three modes prescribed.

3d. That the term street, when used in the several acts, in reference to the improvement thereof, and to the petition or desire for the same, of the owners of the lots or ground thereon, means and includes the whole extent of such street, and consequently, that the trustees have no authority to cause only a portion of a street to be improved and to tax the owners of lots upon such portion with the expense.

4th. We are of opinion that no question necessarily arises in this case, under the act of 1839, “to extend the limits of the Town of Bowlinggreen,” as to the extent of the powers of the Trustees in reference to the additional territory, embraced in the extended limits of the town under that act. So far as Plain street may have been opened and extended beyond the limits of the old town, into the new, we have no doubt as to the right of the Trustees to exercise control and jurisdiction over it as over other portions of the street. Such extension, it appears, was made by the proprietor of the land through which the street was extended, beyond the original limits of the town. Skiles, the proprietor of land adjoining the bounds of the old town, and within the limits of the new, as extended, laid off his land into lots, streets, &c. caused a plat thereof to be made, and delivered it to the Trustees. Plain street was thus extended through Skiles’ land, and the part extended constituted a part of the section of Plain street which the trustees undertook to grade and McAdamize. A portion was within the limits of the old town adjoining, and within those limits were also the lots of the appellee. It is contended the Trustees had no jurisdiction over Plain street, beyond the original limits of the town, because Skiles had not conveyed to them the title. We think no formal conveyance, by deed, was necessary. He laid off his land into lots and streets, and furnished the Trustees with a plat thereof. This was done after the act was passed extending the limits of the town, and after the ordinance of the Trustees extending the limits under the act, Under such circumstances, the streets laid out by Skiles, including Plain street extended, were in effect, dedicated by him to the use of the town and the public, and the Trustees had the same jurisdiction over them as over other streets. A parol dedication to public use, of a common or street, is valid, and that ■without being sanctioned by the use for any particular period of time, The law upon this subject, is very fully examined by the Supreme Court in the case of the City of Cincinnati vs The lessee of White, (6 Peters, 431.) But not only as to the streets, but as to the territory thus laid off into lots, subsequent to-the passage of the act of 1840, and to the ordinance of the Trustees extending the limits; we think they, the Trustees, had jurisdiction as ■over the town within the original limits. We are also of opinion that, upon such an application as is required by 'law, from the owners of lots upon the whole of Plain street, including as well that portion of it which is outside of the original limits of the town, as that which is within, and only upon such an application would the Trustees be authorized to cause the street to be improved, and to levy a tax upon the lots upon the street to defray the expense.

Owsley § Goodloe for plaintiff: Underwdod for defen■dant.

It -being admitted that the improvement in question was made upen a section only of said street, and without a-n application to the Trustees by the owners of lots upon the whole extent -of the street, in either of the modes prescribed by the statutes, we are of opinion the Trustees had no authority to act, and that the tax levied upon the lots of the appellee, to defray a portion of the expense of the improvement, was unauthorized, and that there is ■no error in the decree of the Court perpetually injoining its collection.

The decree is, therefore, affirmed.

Turner for appellant; Owsley Goodloe and Caperton for appellees.