City of Harlan v. Coombs Land Co.

• Decision Date: 04 May 1923
• Citation: 250 S.W. 501,199 Ky. 87
• Parties: CITY OF HARLAN v. COOMBS LAND CO.
• Court: Kentucky Court of Appeals

250 S.W. 501

199 Ky. 87

CITY OF HARLAN v. COOMBS LAND CO.

Court of Appeals of Kentucky.

May 4, 1923

Appeal from Circuit Court, Harlan County.

Action by the City of Harlan against the Coombs Land Company. From a judgment dismissing the petition after demurrer thereto was sustained, plaintiff appeals. Affirmed.

John C Adkins and J. B. Snyder, both of Harlan, for appellant.

Sampson & Sampson, of Harlan, for appellee.

CLARKE J.

Appellee owns five lots fronting on Clover street in the city of Harlan, a city of the fourth class. The city, by ordinance and proceedings duly enacted in accordance with its charter contracted with the Bailey Construction Company to construct and surface this and other streets with Kentucky rock asphalt. The construction company completed its contract, and same was duly accepted by the city, and the costs thereof apportioned to the abutting property. The amount apportioned to appellee was $6,515.27, and this it seems to have paid, as that sum is not involved in this action, which seeks to recover of appellee 5 per cent. of that amount, or $325.76 alleged in the petition to be appellee's proportionate part of the cost of engineering and supervision of the improvement of Clover Street. A demurrer was sustained to the city's petition as amended, and same dismissed, and it has appealed.

The petition alleges that the cost of engineering and supervision was a necessary part of the cost of the improvement; that it had no city engineer, and it was necessary to employ an engineer for this work, which it did in the following manner: On March 10, 1922, the city council, by order duly made and entered upon its records, "gave the mayor of the city the authority to enter into a contract on behalf of the plaintiff with a competent engineer to lay out and supervise the said improvements on Clover street, in the city of Harlan. * * * That, acting by virtue of the authority so given and delegated to him, the mayor of Harlan entered into a contract in behalf of the plaintiff with J. B. McCalla & Co., an engineering concern, for the services of a competent engineer to lay out and construct said improvements on Clover street, and for such services the plaintiff agreed to allow the engineer 5 per cent. of the costs of the construction of said improvements, said 5 per cent. to be charged to abutting property owners in addition to the costs of improvements and construction, and this to be included in such costs. A copy of said resolutions authorizing the employment of an engineer for this work, and the compensation to be paid him, is filed herewith as a part hereof, marked," etc. It is then alleged that the said J. B. McCalla & Co., in accordance with the contract made with the mayor, and for the compensation provided therein, planned and supervised the improvement of said street.

The important questions raised by the appeal and discussed in the briefs are whether the costs of the engineering work performed under...