City Covington v. Southgate

• Decision Date: 05 February 1854
• Citation: 54 Ky. 491
• Parties: City of Covington <I>vs.</I> Southgate.
• Court: Kentucky Court of Appeals

54 Ky. 491

City of Covingtonvs.

Southgate.

Court of Appeals of Kentucky.

February 5, 1854.

APPEAL FROM KENTON CIRCUIT.

The facts of the case are clearly stated in the opinion of the court.

Simmons, for appellant —

J. W. Stevenson and W. B. Kinkead, for appellee — Chief Justice MARSHALL delivered the opinion of the Court —

This action was brought by Southgate to recover from the city of Covington $676, assessed under an ordinance of the city, and paid by him as a tax for the year 1852, upon one hundred and sixty-seven acres of land, of which he is the owner, and which was included within the boundaries of the city without his consent, by an act of the Legislature, passed in 1850. The tax, having been assessed, was paid to the city treasurer, under protest, and with reservation of the right to question its legality by a suit to recover it back.

The plaintiff alleges that his land has been and is appropriated to fields, pasture-land, and wood-land; that there is much vacant ground between it and the populous parts of the city; that but few houses are near it, and it is not necessary for any purposes of the city; that he has not laid it off into lots, and does not desire to do so, but wishes it to remain as heretofore, in fields, pasture-land, and wood-land.

The city, by its answer, puts most of these allegations in issue, and alleges that the town has extended, with houses and inhabitants, on two sides of the plaintiff's land; that there are many houses near it, and streets leading towards it in different directions; that it is needed for affording a passage from one part of the city to another, and that it is worth $3,000 per acre as city property, &c. The answer also alleges that the plaintiff, after opposing the act providing for extending the limits of the city, agreed to the extension on condition that his land should not be taxed for two years, which condition was acceded to and faithfully observed by the city.

The law and facts were submitted to the court, and upon hearing the evidence, which is incorporated in a bill of exceptions, the court rendered judgment in favor of the plaintiff, according to the prayer of the petition. To reverse that judgment the defendant appealed to this court.

It appears from the evidence that there are but few houses and many vacant lots in that part of the city which adjoins and is near the plaintiff's land, upon which there are neither lots, nor, so far as it is included within the extended boundary, are there any buildings for residence. And although it might be convenient to a portion of the city to have a passage over this land, it does not appear that even for that purpose it was necessary to include any large portion of it. Nor is the alleged consent of the plaintiff established by the evidence.

It appears from the plat or map of the city, which forms a part of the evidence in the case, that the land of Southgate, included in the extension, adjoins the former boundary for a considerable distance, but runs out a greater distance between lines which approach each other so as to leave but a short line between them, when they reach the extended or new boundary. There is, however, on the eastern side of it, a large body of land, apparently several hundred acres, included in the extension and reaching the Licking river, on which, at a considerable distance from the former boundary, and also from Southgate's land, there are several blocks of lots with streets, &c., covering a small plat of ground, containing, as we understand, some inhabitants, and which, we also understand, has been laid off into lots since the extension. It is this detached town or portion of the city which, as we understand, requires a passway for convenient access to the city. There are other modes of getting this passway if it be necessary, than by imposing upon a single individual so heavy an annual burthen, as that from which he is now seeking to be relieved. And we...