City of Covington v. Hall

• Decision Date: 15 December 1906
• Citation: 98 S.W. 317
• Parties: CITY OF COVINGTON ET AL. v. HALL. NOWLAND ET AL. v. HALL ET AL.
• Court: Kentucky Court of Appeals

98 S.W. 317

CITY OF COVINGTON ET AL. v. HALL.

NOWLAND ET AL. v. HALL ET AL.

Court of Appeals of Kentucky.

December 15, 1906

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Actions by Mary A. Hall against the city of Covington and another and by W. S. Nowland and another against Mary A. Hall and another. From a judgment rendering relief to plaintiff in the first action, and dismissing the petition of plaintiffs in the second action, defendant, city of Covington, in the first action and plaintiffs in the second action appeal. Judgment in each case reversed and remanded.

F. J Hanlon, for appellant city of Covington. J. L. Elliston and Hazelrigg & Hazelrigg, for appellant Nowland & Co. W. O Byrne, for appellee.

HOBSON C.J.

The city of Covington, pursuant to an ordinance, made a contract with W. S. Nowland & Co. for the improvement of St. Louis street from the east side of Garrard avenue to the west side of Edward street. Nowland & Co. began the work under the contract, and Mary A. Hall brought suit against them and the city charging that they had entered upon her property tearing away her fences, cutting down her trees, and otherwise damaging her. She alleged that the ground was not a street of the city, but was her private property, and she prayed an injunction and damages for the injury already done. No injunction was granted and Nowland & Co. continued with their work, and, when they finished their contract, they filed suit against Mrs. Hall and the city to recover for the work they had done under the contract, so far as the cost was apportioned to Mrs. Hall's property, praying judgment against the city in the event the property was held not liable. On final hearing, the court held that the land improved as St. Louis street was not a street, but was the private property of Mrs. Hall. He thereupon adjudged her a permanent injunction as prayed, dismissing the petition of Nowland & Co. against her property, and giving them judgment against the city for the amount apportioned against it. From this judgment the city of Covington and Nowland & Co. have appealed.

In 1853 J. D. Patch caused a plat to be made of what is known as "Patch's Subdivision or Addition to the City of Covington," and had his plat recorded in the county clerk's office at Independence. Patch's plat which he thus had recorded showed various streets running out from the Licking river, and others at right angles to them, cutting the tract of land up into squares, which were subdivided into lots. Some alleys were also laid down. The lots were numbered consecutively. One of the streets, running out from the river, was named "St. Louis Street." One of the cross-streets named "Mary Street," situated near the external boundary of the tract, is marked "closed" on the plat, and nearer the river there is for one square a dotted line on the plat in St. Louis Street. A part of Clay street, near where Mary Street intersects it is also marked "closed." The property of Mrs. Hall lies on St. Louis Street, and embraces lot 2 and half of lot 5; but it lies a square and a half from the point on St. Louis street where the dotted line appears. Her boundary extends across and includes within it for a square or more Mary Street and Clay Street, marked "closed" on the plat. What the dotted line in St. Louis Street signifies is not explained in the evidence, nor is there any explanation as to the word "closed" written on Clay and Mary streets, except so far as it may be inferred from the way Mrs. Hall's property is situated and the circumstances shown.

There is no proof that the City of Covington accepted in any way the streets indicated on the plat of Patch. In fact, no proof is taken by the city, except what is shown by the records, which is as follows: In April, 1864 a commissioner's deed was made to W. W. Walker in a suit in which John D. Patch was a party, for the real estate embraced in the plat referred to, and two calls of this deed are as follows: "Thence running southward, with said Southgate's line, 435 7/12 feet to the center of St. Louis street as platted by said Patch. Thence eastward with the center of said street 305 feet." In August, 1864, Walker made a deed to John G. Carlisle for the property which contains the calls above given, and in the deed there is also the following language: "The consideration hereinbefore mentioned is for such portion of said ground included in said boundary as is not dedicated for streets and alleys by the plat of land of said Patch hereinbefore referred to."

On October 31, 1870, Carlisle, pursuant to a bond which he had given in 1866, conveyed to Mrs....