City of Hazard v. Adams

• Decision Date: 21 May 1929
• Citation: City of Hazard v. Adams, 229 Ky. 598, 17 S.W.2d 703 (Ky. Ct. App. 1929)
• Parties: CITY OF HAZARD v. ADAMS et al.
• Court: Kentucky Court of Appeals

17 S.W.2d 703

229 Ky. 598

CITY OF HAZARD v. ADAMS et al.

Court of Appeals of Kentucky

May 21, 1929

Appeal from Circuit Court, Perry County.

Suit by G. M. Adams and others against the City of Hazard. From the judgment, defendant appeals. Reversed in part with directions, and affirmed in part.

See also, 17 S.W.2d 706.

J. K P. Turner, of Hazard, for appellant.

W. A Stanfill, of Hazard, for appellees.

STANLEY C.

In the East End addition to the city of Hazard, East Main street and Maple street run approximately east and west. What is called the "Old County Road," north of East Main street runs in the same general direction. Elm street extends north from Maple street across East Main street to the "Old County Road." Bisecting this area is Big Bottom branch, having quite a large channel. It flows southwestwardly, crossing Main street; thence through the property of the Hazard Laundry Company and across Elm street at an angle of 45 degrees, about midway between Maple and East Main streets; and further on crosses Maple street almost directly.

The appellee G. M. Adams owns property on the northwest corner of Maple and Elm streets, fronting 50 feet on Maple street, and 150 feet on Elm street. The appellee Goodloe Combs owns similar property on the northeast corner. The appellee Hazard Laundry Company owns property on the southeast corner of East Main street and Elm street, fronting 50 feet on East Main street, and 125 feet on Elm street. The appellees H. C. Faulkner and W. E. Faulkner own property on the southwest corner of East Main and Elm streets, fronting 175 feet on East Main street and 125 feet on Elm street. T. D. Draughan owns property on the northeast corner of East Main and Elm streets, and one Combs (not the appellee) owns the property on the opposite corner.

On July 17, 1922, the council of the city of Hazard passed an ordinance for the improvement of a number of streets of the city, the cost to be borne by abutting property owners. It designated Elm street as district No. 39, and provided for its construction throughout its entire length from Maple street to the "County Road," a distance of approximately 425 feet. Maple street was divided into three districts, district No. 32 being from Elm street to its intersection with East Main street; district No. 33 being from Elm street to its intersection with Spring street. The ordinance provided that the cost of the improvement should be borne by the property owners in each district, according to the number of front feet abutting thereon; and further provided that "the cost of each district shall be taken separately and assessed against the property abutting on each district, street intersections to be paid for by the City of Hazard." A contract was entered into between the city and J. S. Kelly, contractor, for the construction of these streets on May 5, 1924. It became necessary, in the construction of the street, to build large concrete culverts over Big Bottom branch. The cost of the culvert across Elm street was $1,390.12, of which $1,327 was assessed against the appellees herein. For some unexplained reason the city did not require the contractor to build Elm street from East Main to "Old County Road," a distance of 110 feet. The appellees made no objection to paying for the street improvement, but they did object to bearing the cost of these culverts, on the ground that there was no provision in the ordinance for their construction, and that the city had for several years maintained bridges across the stream and the construction could not be considered original work. They further objected because the contractor was not required to complete his contract, which resulted in the release by the city of Draughan and the owner of the property on the opposite corner of any part of the cost of the culvert. It was further claimed by the Faulkners and the Hazard Laundry Company that they had within two years of the enactment of this ordinance been required to pay for the construction of East Main street at a cost in excess of 50 per cent. of the value of the property abutting on Elm and East Main streets. This action was instituted to enjoin the enforcement of liens against their property to the extent of the cost of the culverts.

1. While the ordinances do not in express terms provide for the construction of culverts, they do provide for the construction of the streets in accordance with the plans and specifications of the city engineer, which included the culverts. Such plans did not have to be incorporated in the ordinance or published therewith. Elder v. City of Richmond, 186 Ky. 706, 218 S.W. 239. Manifestly, the improvement contemplated all construction necessary and indispensable to a completed street, and these culverts, although of large dimensions (4 by 5 by 75 feet), and costly to erect, were essential. There could have been no street without bridging the stream in some manner. The facts appearing in Wendt v. Tucker, 185 Ky. 626, 216 S.W. 61, are not materially different from those presented in this case, and the law therein declared is entirely applicable. See also City of Covington v. Sullivan, 172 Ky. 534, 189 S.W. 709; Janutola & Comadori Const. Co. v. Taulbee, 211 Ky. 356, 277 S.W. 477 (involving construction of East Main street, of Hazard); Board of Councilmen. etc., v. Jillson, 225 Ky. 61, 7 S.W.2d 859. The construction of the culverts and the assessments for the cost against the property holders were duly authorized, and it cannot be said that the inclusion of their cost in the street assessments is depriving the owners of abutting lands of their property without due process of law, as appellees contend.

2. The city contends that the entire cost of the Elm street culvert should have been imposed upon the property abutting that street between Maple and East Main. The special chancellor who tried this case was of the opinion that only five-sevenths of this cost should be assessed against that property and that the remaining two-sevenths should be borne by the city and paid out of the general funds. The ordinance provides that the cost of the street from beginning to end shall be considered a unit and apportioned accordingly. The court did not err in so apportioning this extraordinary cost for had the entire...