City of Ashland v. Queen

• Decision Date: 17 April 1934
• Citation: 71 S.W.2d 650,254 Ky. 329
• Parties: CITY OF ASHLAND v. QUEEN et al., and seven other cases.
• Court: Kentucky Court of Appeals

71 S.W.2d 650

254 Ky. 329

CITY OF ASHLAND v. QUEEN et al., and seven other cases.

Court of Appeals of Kentucky

April 17, 1934

Rehearing Denied June 19, 1934.

Appeal from Circuit Court, Boyd County.

Suit by T. A. Queen and others, by Alice Brown and others, by J. A Sewell and others, and by B. F. Thomas against the City of Ashland and others. From judgments against the City, it appeals, and, from an order discharging Boyd County from liability, plaintiffs appeal.

Judgments affirmed on appeals of city, and, on plaintiffs' appeals judgments reversed.

R Campbell Van Sant, of Ashland, for appellant City of Ashland.

Woods, Stewart, Nickell & Smoot, of Ashland, for appellees B. F. Thomas, T. A. Queen and others.

John T. Diederich, of Ashland, for appellees J. A. Sewell and others.

Yager & Woods, of Ashland, for appellees Alice Brown and others.

Thomas Burchett, of Ashland, for appellee Boyd County.

STANLEY Commissioner.

These four separate suits for damages suffered by the erection of a viaduct in front of plaintiffs' property were brought against the city of Ashland, Boyd county, and the state highway commission. The special demurrer of the commission was sustained, and it is out of the case. A peremptory instruction was given for the county. Upon verdicts in the joint trial, judgments were rendered against the city. The city appeals against the plaintiffs, and the plaintiffs appeal from the order discharging the county from liability.

Winchester avenue in Ashland is 60 feet wide, but before this work was begun the paving was only 20 feet in width in front of plaintiffs' property, which is on the north side. There was a 5-foot sidewalk and a grass plot between the street paving and the property line. About a quarter of a mile west of plaintiffs' property the street went under the tracks of the Chesapeake & Ohio Railway Company for quite a long way. This underpass was within the city limits. The street continued as the state highway across other tracks at grade and a creek and then around a hill. During high water in the Ohio river the underpass would often become flooded. The traffic was very heavy and the roadway was inadequate. The viaduct was built to eliminate these several conditions within and without the city limits. It is about 30 feet wide, and is in the center of the street, leaving a roadway on either side on the original grade from 14 to 23 feet wide, which will be, or has been, paved with concrete. It is not clear whether or not the avenue will cease to be a thoroughfare by the closing of the railroad crossing at grade. The incline begins near Fifth street and rises on solid masonry for a short distance, and then is built on steel piers upon concrete bases. Where it passes the plaintiffs' property it is on such trestle, approximately 32 feet high, and the roadway floor is about the top of the second-story windows.

The work was done under an agreement signed by the highway commission, the county, the city, the Chesapeake & Ohio Railway Company, and the American Rolling Mill Company. It provided in substance that the plans and specifications should be prepared by the highway commission and approved by the superintendent of public works and the engineer of the city and by the railway company, and the contract let by the commission. The construction was under the supervision of the commission and the railway company, who jointly agreed to maintain the structure as provided by the statutes governing the elimination of grade crossings and the maintenance of such viaducts. In part payment of the construction costs, the railway company agreed to contribute $125,000, the city of Ashland $25,000, and the American Rolling Mill Company $10,000. Boyd county also obligated itself to contribute $25,000 to the cost of the improvement, and in addition to acquire and pay for the required rights of way, except the easement over the railway company's property which it would grant. It was stipulated that Winchester avenue north of the viaduct should not be closed or abandoned at any future time.

The plaintiffs severally alleged damages to their property by reason of the structure and the elevation of the highway above the grade of the street, which had been previously established by the city and paved at the expense of the abutting property, in that the way of ingress and egress was destroyed; the light and air shut out from the dwellings; dust and cinders were cast upon and in the buildings; noise and vibrations affected the property; obnoxious odors from motor vehicles permeated the buildings; and their privacy was destroyed. Liability of the city and the county was and is charged to be joint and concurrent, it being alleged that it was the duty of the county to furnish the right of way for the construction of the state highway and pay for all resulting damages, and that the city had changed the grade of the street, or authorized the change. The several allegations of the petitions were traversed, including the charge that the city had entered into the contract as interpreted by plaintiffs.

The city takes the position that it had nothing to do with the erection of the viaduct except to make a contribution to its cost and to exercise the privilege granted it by the commission of approving the plans. It is argued that the city was without power to forbid, and consequently to permit, the improvement, since the commission had plenary power to construct that part of the state highway passing through the city as it desired, and that both under the statute (section 4356t-7) and the contract the duty devolved upon the county exclusively to furnish the right of way for this project, which included damages to adjacent property. The city maintains that it was not directly interested, as the purpose of the undertaking was to eliminate the grade crossing outside of the city limits; that the change was for the benefit of the general public and the railway company, as the structure (which extends beyond the boundary) does not serve the city or its inhabitants in any special or peculiar way; that it is purely and exclusively a state highway superimposed upon its street; that the city has no control over it, and no part of the viaduct can ever become a street of the city nor be used for city purposes, which fact is emphasized, it is argued, by the agreement that the highway commission should always maintain and keep the viaduct in repair and that the city should not in the future close or abandon Winchester avenue as a public street. It is pointed out also that the avenue on either side of the viaduct has been repaved with concrete at the original grade, and that it yet constitutes the street rather than does the superstructure.

The defense of the county is that it was not required under the law to furnish a right of way for the state highway within the limits of a second class city, and the contract contemplated that the county would furnish only the right of way outside of the city limits. It is more positively charged that the city has exclusive control over its streets even where they constitute a section of a state highway. In support of this argument, there are cited sections 1851, 3094, 3095, 3096, 3104a-1, 2 and 3, 4293, 4294, and 4295, of the Statutes. Other defenses raised by the county are that the fiscal court did not authorize the execution of the contract, and that the appropriation or promise to contribute $25,000 to the cost of construction was invalid because the indebtedness of the county exceeded its current income for any one year.

We think the contention of the plaintiffs that this was a joint undertaking and that both the county and city are liable for the resulting damages is sound. There is no dispute that under section 242 of the Constitution municipal corporations and others invested with the privilege of taking private property for public use must make just compensation for property taken or injured by them. The major question presented in the case is which of these municipalities is liable or whether both of them are accountable for the resulting damages.

It cannot be said that the county is solely responsible under the statute requiring that counties shall furnish the rights of way for state roads. Section 4356t-7. This project upon which both the city and county entered involved much more than the mere procurement of a right of way. The city was an active participant in the construction. We cannot agree with its counsel that the provision for the approval of the plans by the city's officers was solely a condition precedent to the making of the contribution to the cost. It does not say so; and a consideration of the whole contract and the situation to be remedied negatives such limitation. These plans were not only approved by the designated officials, but accepted by an ordinance. The city paid part of the cost and had the structure built in the center of its street, thereby materially obstructing and changing in part the grade of the street which had been formally dedicated, established, and built years before at the expense of the abutting property. Whether the highway commission had such superior right or plenary power as to have proceeded with the construction regardless of the city's objection is not here a matter of concern. The city did authorize the use of its street, and in effect constituted the highway commission as its agent to do the work according to the plans which it accepted. It appears that this much-needed and monumental improvement was made after several years of study and effort on the part of the city officials and others interested. Ashland greatly wanted it, for this is one of the main highways entering the city, and is the lane of travel for its largest industry,...