City of Cumberland v. Central Baptist Church of Cumberland

• Citation: 305 Ky. 283,203 S.W.2d 57
• Parties: CITY OF CUMBERLAND v. CENTRAL BAPTIST CHURCH OF CUMBERLAND et al.
• Decision Date: 20 June 1947
• Court: Kentucky Court of Appeals

203 S.W.2d 57

305 Ky. 283

CITY OF CUMBERLAND v. CENTRAL BAPTIST CHURCH OF CUMBERLAND et al.

Court of Appeals of Kentucky

June 20, 1947

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Action by Central Baptist Church of Cumberland, by its trustees George Hogg and others, against City of Cumberland, for damages allegedly caused to plaintiffs' church by excavation for installation of a sewer. From an adverse judgment, defendant appeals.

Affirmed.

J. B Wall, of Harlan, and C. A. Bailey, of Cumberland, for appellant.

Astor Hogg, of Harlan, for appellees.

STANLEY Commissioner.

The appeal is from a judgment for $1,000 against the appellant for damages to a church caused by an excavation for the installation of a sewer. It is argued that neither the petition nor the evidence was sufficient to establish liability upon the City.

It is alleged that the City of Cumberland had made a contract with Harry Martin, employing and contracting with him to install a sewer along East Street, which runs in the rear of plaintiffs' church, and that in doing the work the defendant and the contractor had removed the lateral support of the property by leaving a ditch open for a considerable period of time and thereby caused the building to subside. The point made is that since a city can speak only through and by its records, it was necessary to plead the due enactment of an ordinance authorizing the work and the cofntract; that since it was not shown that was a valid contract with Martin, the City cannot be held liable for his act. Plaintiffs' evidence did not go any farther than the pleading, and the defendant's motion for a peremptory instruction was based upon a failure in both the pleading and the proof in this particular.

The action is not predicated on negligence but on the taking of property for a public purpose, which under Section 242 of the Constitution cannot be done without compensation. It is the settled interpretation of this provision of the constitution that where negligence is not the cause, the owner of property may recover of a city damages to real property as well as the actual taking of it. A case like the present is City of Covington v. Parsons, 258, Ky. 22, 79 S.W.2d 353.

This is not an action on a contract. It seems to us that pleading and proving the validity of the contract with one doing work of this character is unnecessary, for the liability on the one side and...