Bayes v. Town of Paintsville

• Decision Date: 12 November 1915
• Citation: 179 S.W. 623,166 Ky. 679
• Parties: BAYES ET AL. v. TOWN OF PAINTSVILLE.
• Court: Kentucky Court of Appeals

179 S.W. 623

166 Ky. 679

BAYES ET AL. v. TOWN OF PAINTSVILLE.

Court of Appeals of Kentucky.

November 12, 1915

Appeal from Circuit Court, Johnson County.

Action by the Town of Paintsville against F. M. Bayes and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. F Bailey, of Paintsville, for appellants.

G. B Martin, of Catlettsburg, for appellee.

SETTLE J.

The town of Paintsville, through its board of trustees and under certain ordinances duly passed, inaugurated and executed a plan of street paving and sewerage, extending practically over the whole town. The work was done under what is generally known as the "10-year bond plan" authorized by the charter of towns of the sixth class, to which Paintsville belongs; such authority being found in section 3706, Kentucky Statutes. The cost of the street paving and sewerage construction done by the town of Paintsville aggregated, approximately, $80,000, and was all completed and paid for except what was assessed against the property of F. M. Bayes, his wife, Mary Bayes, and their daughter, Malta Bailey. In making the improvements under the 10-year bond plan mentioned, the town of Paintsville let the contracts for the work and issued and sold bonds for the purpose of raising the money to pay for it. By the terms of the bonds the duty of collecting the assessments from the property owners is imposed upon the city, which pledges its faith and credit to exercise all legal means to enforce their collection. Its relation to the matter is therefore analogous to that of a trustee, the bondholders being the cestui que trustent. It appears that the appellant F. M. Bayes owns three parcels of real estate in the town of Paintsville, abutting streets paved and in which sewers were constructed, the first parcel lying on Court street, the second on Second street and the third on Second and Court streets; and that each parcel was liable to an assessment tax for the paving of the street it abuts and constructions of the sewer therein, and was assessed its proportionate part of such cost according to value, the amount assessed against the first parcel of real estate being $152.42, the amount assessed against the second parcel, $118.03 and the amount against the third parcel, $26.66. Appellants having refused to pay these assessments, or any part thereof, this action was instituted by the appellees, town of Paintsville and its board of trustees, for the recovery thereof and to enforce against the lots, respectively, liable therefor the liens allowed by statute as security for such assessments. Prior to the institution of this action there had been instituted in the same court by the appellants an action in which it was sought to enjoin the town of Paintsville and its board of trustees from selling the bonds, which had been issued for the purpose of obtaining the money with which to pay the cost of the improvements in question. The two actions were consolidated and heard together, the questions at issue between the parties being practically the same in each case.

By the petition in the action brought by appellants and their answer to the petition in the instant case, the validity of the assessments in question was attacked and the right of the appellee to subject the property, or any part of it, to the payment thereof denied. The attack upon the validity of the assessments also put in issue the validity of the several ordinances under which the work of improvement was done, the manner of their passage, the letting of the contracts for the work, and the manner in which the work was performed; but by the production of copies of all the ordinances, contracts, and writings showing the proceedings thereunder, and other evidence found in the record, the performance of the work and the manner in which it was done, we are convinced that the whole proceedings, both as regards the validity of the ordinances, contracts, improvements, and the character of the work done in making the same, were planned and executed with unusual care. This conclusion enables us to waive consideration of the immaterial matters appearing in the voluminous record, and brings us to the consideration of the questions necessary to be determined.

First, it is insisted for appellants that the second parcel of real estate, mentioned as lying on Second street, is not subject to assessment for the improvement of that street because it does not abut the street. The basis for this contention is that Mary Bayes, wife of the appellant F. M. Bayes, owns a strip of ground eight feet in width extending along Second street, which abuts the street and lies between it and the remainder of the lot, yet owned by F. M. Bayes. The facts shown by the evidence are that when the purpose of the appellee city to make the improvements in question became known, but before the work on the improvements began, the appellant F. M. Bayes by deed conveyed to his wife the eight-foot strip of ground in question, reserving in the deed the use of it as a means of ingress and egress to the remainder of the lot, upon which he then had and now has his residence, and providing that no fencing or sidewalk should be constructed thereon. In other words, under the provisions of the deed, the wife took nothing but the naked title to the ground, the full possession and right to the use thereof remain in the husband, and may be passed to his vendees, immediate and remote, in all respects as if the deed had not been executed. The circumstances attending the conveyance together with the admissions contained in the testimony of the appellant F. M. Bayes, convince us that the conveyance was made with the intent on the part of the grantor to avoid the assessment that was subsequently made upon the property for the improvement of the street in front of it. The assessment cannot be defeated by such a scheme. If allowed, it would, in effect, nullify the act of the Legislature giving municipalities authority to make such improvements at the cost of abutting property owners, and place an undue burden upon those who had not resorted to such a scheme for a like purpose. The question, in the aspect here presented, has never been passed on in this jurisdiction, but in 28 Cyc. 1133, we find a statement of the law which we think applicable:

"Conveyances to Evade Assessments.--Liability of land for an assessment attaches from the passage of an ordinance ordering an improvement, and will not be affected by a subsequent conveyance; and a colorable sale of the portion of a lot abutting an improvement, with intent to avoid an assessment, will not operate to exempt the part retained."

We therefore concur in the conclusion reached by the circuit court that the lot in question, exclusive of the strip conveyed the wife, is, notwithstanding such conveyance, subject to the assessment.

Another ground of defense relied on by appellants is that the assessment of abutting property for the construction of a sewer is unauthorized, and that the sewer on Second street, where abutted by their lot, is larger than that connecting with it. As to the first contention it is only necessary to say that section 3706, Kentucky Statutes, confers upon the board of trustees of a town of the sixth class power to construct sewers as well as streets and also provides that the expense incurred in doing so may be paid by a local assessment upon abutting property, not exceeding 50 per cent. of the value of the ground, after such improvement is made, excluding the value of the buildings and other improvements upon the property so improved. It is not claimed by appellants that the assessment, both for the cost of constructing the street and sewer, exceeds 50 per cent. of the value of the ground assessed, after the exclusion of the buildings and other improvements upon the property. The plan of paving the streets included the construction of sewers for carrying off the surface water. It appears that in some of the streets the dimensions of the sewer pipe are smaller than in others, but where this is so it was, according to the testimony of competent engineers and others, appearing in the record, indispensably necessary to the work of paving the street; and, while the sewer in the particular street complained of by appellants may be somewhat larger than that connecting with it, this fact affords no evidence that the work was defectively performed, or that it could otherwise have been done, consistent with the work of paving.

It is well settled in this jurisdiction that the plan or method of improvement, as well as the necessity therefor, is a matter solely within the discretion of the legislative body, whose discretion in respect thereto is beyond review by the courts, in the absence of a showing of fraud or corruption upon the part of that body in the adoption or execution of the plan. In the recent case of Town of Russell v. Whitt, 161 Ky. 187, 170 S.W. 609, one of the complaints made by the property owner was that the construction of the street abutting his property failed, in certain particulars therein alleged, to conform to the contract under which the work of construction was to be performed. In overruling that complaint we said:

"The complaint made in the petition that the construction of the street abutting appellee's property failed, in the particulars therein alleged, to conform to the contract, may be eliminated from the case, because the work as completed was admittedly accepted by appellant's board of trustees; and their judgment is conclusive in the absence of a showing that they were guilty of fraud or mistake. This rule is stated in the case of Creekmore v. Central Construction Co., 157 Ky. 336 as follows: 'The defendants pleaded in their answers that the work [street construction] was

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