Bullitt v. Gosnell

Opinion of the Court by

Judge Nunn

Reversing.

In tlie year 1900 the city of Louisville, through its council, caused the improvement of Field avenue, and assessed the cost thereof, proportionally, against the property on either side thereof to a depth of 180 feet. There -are eight property owners who are appellants in one ease and sis in the other. Both cases involve the same questions, and we will consider them as one. Appellants do not question the regularity 'of the proceedings had in making the improvement. The only thing they complain of is the manner in which the cost of the improvement was apportioned.

We will endeavor to explain the situation so that it miay be understood. Field avenue, the street improved, runs east and west and is 180 feet south of the northern city limits. The next street south of it, and running nearly parallel therewith, is Frankfort avenue. The distance between the two is about 880 feet. The two streets connecting with Field avenue, at the place it was improved, are Roberta and Bayly avenues. These two streets are parallel and run north and south. To the west of Bayly avenue is an avenue about 360 feet long, called “Victor avenue,” which runs parallel with Frankfort and Field avenues. Victor avenue, according to the evidence, cannot be extended through the block surrounded by Field, Bayly, Frankfort, and Roberta avenues without condemning parts of four lots and destroying two houses situated thereon, which were valued at $9,000. The cost of the improvement of Field avenue was assessed, proportionally, against the property abutting that part of the avenue improved to the depth of 180 feet on the south side of it for' two reasons: One was because they could not extend the distance on the north side farther than 180 feet, as at that point they reached the city limits. .The other was they wanted to leave a territory south of Field avenue and beyond 180 feet in the block referred to, to b'e assessed for the improvement of Victor avenue when it was extended through the block. It appears that when the city improved Frankfort avenue the cost of the improvement was assessed against the property abutting thereon to a depth of 440 feet, including one-half of the block referred to. It seems that it did not consider then that Victor avenue would ever be extended through the block, and, under the proof in this ease, there is no probability that it ever will be so extended, and, if not, this would leave a territory between the point where the avenue would pass through the block and the point 180 feet south of Field avenue untaxed for the improvement of any street running east and west.

Section 2833, Ky. St. (Russell’s St. Sec. 895), under which the improvement of Field avenue was made, is in part as follows: “When the improvement is the original construction of any street, road, lane, alley or avenue, improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally appointed (apportioned) by the board of public works, according to the number of square feet owned by them, respectively, and in such improvements the cost of the curbing shall constitute a part of the cost of the construction of the street or avenue, and not of the sidewalk. Each subdivision of the territory bounded on all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public ways shall state the depth, not exceeding five hundred feet, on both sides of said improvement to be assessed for the cost of making the samé, including the cost of the improvement of the intersection, if any, of said public way, according to the number of square feet owned by the parties respectively within the depth as set out in the ordinance.”

Appellees’ contention is that the property ton neither the north nor south side of Field avenue, where it was improved, was bounded by principal streets on all sides, and for that reason the city was compelled to fix the territory to be taxed on each side of the avenue at the same depth, .and, as the city limits were only 180 feet north of the avenue, they could not go farther than that on the south side. We are of the opinion that the property on the south side of Field avenue was bounded on all sides by principal streets, and were squares within the meaning of the statute, and the cost of the improvement should have been assessed against the property on the south side within one-fourth of a square of the avenue. On the north side the cost should be assessed against all the property there is within the city limits north of that part of the street improved. It would be impossible to make squares out of the property on the north side of the avenue and bound them by principal streets as contemplated by the statute.

Appellees contend that appellants have not shown that a different apportionment would be of any benefit to them, and for that reason this court should not reverse the case, even though the apportionment was irregular. This court has repeatedly announced this rule, but appellees’ position is wrong. Appellants both allege and prove that it would be of benefit to them to have the apportionment made correctly, and of this there can be no doubt. The statute requires the cost for such improvements to be made according to the number of square feet owned by the parties, respectively, within the territory as set out in the ordinance. If appellants’ contention be sustained, there will be considerably more property within the territory to be assessed' for the payment of the cost of the improvement, which will, necessarily, decrease the' amount to be assessed against their property.

Section 2834, Ky. St. (Russell’s St. Sec. 897), provides, among other things, that “no error in the proceedrugs of the general council shall exempt from payment after the work has been done as required by either the ordinance or contract but the general council, or the courts in which suits may be pending, shall make all corrections, rules, and orders to do justice to all parties .concerned. ’ ’ In the case of American Standard Asphalt Co. v. Schuster, 125 Ky. 497, 102 S. W. 806, 31 R. 133, this court held that in a case like this the failure to make proper 'assessment for the cost of an improvement could not defeat or injure the contractor who performed the work.

On the return of this case the lower court should require the pleadings to be amended and the proper parties brought before the court, and a reapportionment made of the whole cost of the improvement according to the principles herein established.

For these reasons, the judgment of the lower court is reversed, and remanded for further proceedings consistent herewith.