City of Louisville v. Louisville Rolling Mill Co.

• Decision Date: 28 May 1867
• Citation: 66 Ky. 416
• Parties: City of Louisville v. Louisville Rolling Mill Company.
• Court: Kentucky Court of Appeals

66 Ky. 416

City of Louisville v. Louisville Rolling Mill Company.

Court of Appeals of Kentucky.

May 28, 1867

1. The general council of Louisville ordered and required part of Brook street to be regraded, and the additional embankment caused by the regrading, to be protected by filling up the front of adjacent lots, or by a perpendicular wall--all to be done at the expense of the lot-owners. On the grounds that the proposed grade would raise said street in front of their mills and lot so as to exclude light and air from their mills, and prevent the use of their only passway for ingress and egress to and from their mills, and that the damage to their property and business, resulting from such improvements, would be irreparable, the Louisville Rolling Mill Company sued out an injunction against the city and its contractors to prevent the making of said improvements. The judgment of the chancellor perpetuating temporarily the injunction is affirmed, with directions to him, to keep control of the cause, and to modify the injunction, from time to time, upon proper application, as directed in the opinion of the court.

2. Cities have not the absolute uncontrollable right to order such improvements of the streets as they may deem necessary or beneficial at the expense of the property-holders, and in utter disregard of their interest, and without compensation for it sometimes happens that such improvements will not only render the property entirely valueless to the owner, but more--take it from him to pay for its own improvement besides destroying his business, and sometimes causing him to contribute from his other means to its destruction.

3. So long as the city confined the improvement to the boundary of the street, and interfered with no private right of light air, or private passway, the incidental injury to the lot-owners would be of that class of misfortunes, to them, for which no remedy for the injury is afforded by law. ( Keasy vs. Louisville, 4 Dana, 154; Radcliff's ex'rs vs. Mayor, & c., of Brooklyn, 4 Comstock, 195.)

4. Lot-owners in cities and towns may be presumed to have purchased, in contemplation of the power in the local authorities to direct them to make such improvements as are ordinary and useful, at their own expense; but when the improvements are of an extraordinary character, and so peculiarly injurious to the proprietors as to result, to some considerable extent, in a deprivation of the use of their property, and injury to their business, such improvements should not be made without compensation.

APPEAL FROM LOUISVILLE CHANCERY COURT.

BARR & WRIGHT and ROBT. J. ELLIOTT, For Appellant,

CITED--

Charter of Louisville, secs. 2, 6, art. 7, and sec. 10, charter of 1828.

Amr. Law Reg. 1865, Nov. No. ; Mills vs. Brooklyn, p. 37.

2 Blackstone, 14, 264, 265.

7 Dana, 429; Briebaker vs. Paul, & c.

7 Johnson's Chy. R., 328, 336; Jerome vs. Ross.

Story's Eq., Redfield's ed., sec. 929.

25 Vermont R., 49; Hatch vs. Vermont C. Railway.

23 Ga. R., 402; Markham vs. Mayor, & c.

2 Johnson's Chy. R., 463; Belknap vs. Belknap.

MSS. Opns.; Louisville vs. Lyons, & c., and White, & c., 1856.

1 Denio, 595; Wilson vs. Mayor, & c., of New York.

18 Penn. R., 187 (6 Harris ); O'Conner vs. City of Pittsburg.

2 Dutcher, 49; City of Camden vs. Mulford.

5 Harrington, 243; Clark vs. City of Wilmington.

4 Mich. R., 435; Dermont vs. Mayor, & c., Detroit.

12 Mo., 414; Gunn vs. City of St. Louis.

14 Mo., 20; Taylor, & c., vs. St. Louis.

15 Mo., 610; Lambar vs. City of St. Louis.

27 Miss., 357; White et ux. vs. Yazoo City.

10 Ohio, 159; Rhodes vs. City of Cleveland.

15 Ohio, 476; McCombs vs. Akron.

18 Ohio, 229; Akron vs. McCombs.

4 Ohio, 80; Dayton vs. Pease.

35 Penn. (11 Casey ), 329; Carr, & c., vs. N. Liberties.

W. P. BOONE, On same side,

CITED--

2 Cranch, 127; 2 Johnson, 109.

City Charter of Louisville of 1851, art. 7, sec. 2.

4 Dana, 154; Keasy vs. City of Louisville.

2 Hilliard on Torts, 151, & c.

6 Ia., 240; Snyder vs. Rockford.

4 Comstock, 195; Radcliff's ex'rs vs. Brooklyn.

M. C. JOHNSON, H. J. STITES, and J. F. BULLITT, For Appellees,

CITED--

Civil Code, secs. 305, 306, 321.

5 Harr. (Del. R. ), 243; Clark vs. Wilmington.

13 Wendell, 355; The People vs. Canal Commissioners.

26 Id., 404; The Commissioners vs. Kempshall.

6 Cowen, 518; ex parte Jennings.

3 Kent's Com., 517, 7 th ed.

Angell on Water-courses, secs. 466, 476, and cases cited.

Charter of 1780; 10 Hennings St. Va., 293.

Charter of 1828; Session Acts, 208, sec. 7.

4 Term R. (D. & East. ), 794; The Governor, & c., vs. Meridith.

2 Barn. & Cres., 703; Boulton vs. Crowthers.

6 Taunt., 34; Sutton vs. Clark.

1 Nott & McCord, 387; Stark vs. McGowan.

14 Mo., 20; Taylor vs. City of St. Louis.

9 Watts, 385; Green vs. Borough, & c.

6 Wheaton, 593; Gossler vs. Georgetown.

18 Penn. St., 187; O'Conner vs. Pittsburg.

4 Dana, 155; Keasy vs. Louisville.

Sedgwick on Con. and Statute Law, 519, 524.

2 Bush, 452; Terrill vs. Rankin.

Angell on Highways, sec. 214, note 1, secs. 93, 202, 218 note 1.

23 Verm., 364; Livermore vs. Jamaica.

5 Dana, 28; 7 Id., 81; 9 Id., 114.

13 Wendell, 372-3; 25 Id., 464; 26 Id., 404.

12 Mass., 483; 14 Conn., 146; 18 Ohio, 232.

12 Mass., 220; Thurston vs. Hancock.

1 Pick., 418, 434; Callender vs. Marsh.

4 Comstock, 195; Radcliff's ex'r vs. Mayor, & c., of Brooklyn.

24 Penn., 207; Paul vs. Carver.

8 Dana, 294; 3 B. Mon., 27; 17 B. Mon., 763.

6 Watts & Serg., 115; 12 Mo., 424; 21 Pick., 348.

2 Johnson's C. R., 162; 10 Ohio, 160; 15 Ohio, 474.

MSS. Opn., 1856; Louisville vs. White.

MSS. Opn., 1856; Louisville vs. Lyons.

OPINION

WILLIAMS JUDGE.

This is a controversy as to the right of the city, through her constituted authorities, to regrade Brook street, so as to raise the grade, without compensation to appellees.

The lot involved in this controversy, whereon is situated the Rolling Mill and its fixtures, costing some two hundred thousand dollars, is bounded four hundred and twenty feet on the south by Washington street, which runs parallel with the Ohio river; on the west three hundred and seventy-four feet by Brook street, running out from the river to the south boundary of the city; on the north by Water street, running parallel with Washington street; and on the east by Floyd street, running from the river south, parallel with Brook street.

Beargrass creek runs north of Water street and between this lot and the river. Between it and the river there is a low level plateau of land subject to overflow; indeed, Water street is subject to overflow so as to inundate appellees' lot and obstruct the operation of their mill yearly once or oftener.

In the year 1836, the city council determined the grade of Brook street, and, perhaps, had it improved the following year.

October 19, 1847, the city council determined to partially pave a portion of Brook street, twenty feet wide, " in concave form," in the center of the street, so as to form a gutter, and, at the same time, in " such shape as will cause it to be worked into the remaining paving when it shall be put down."

There is some controversy whether this was done at the public expense of the city or private expense of the lot-owners; but however this may be, the work was done, including that part of Brook street fronting appellees' lot, and an apportionment of the expense of improving said street was made between the city and proprietors of lots; and appellees aver, in their petition, that Preston, who owned one half and was trustee for the other, paid the assessment on this lot for said improvement; but the evidence tends to disprove this.

In 1843, the then proprietors first built a rolling mill on that part of the lot contiguous to Brook street, and used it mainly as the means of ingress and egress for hauling and other purposes to and from their mill.

These proprietors were lessees for a term of ten years, with the right of removing their buildings, machinery, & c., even during the term. The present owners, in the years 1854 and 1857, became the proprietors of both the lease and lot in fee.

In the years 1861-2-3, the present proprietors improved and remodeled their mills, removing the machinery, & c., further back from Brook street some fifteen to forty feet.

In the year 1850, the city erected over Beargrass creek, where Brook street crosses it, a very substantial stone bridge, corresponding with the then grade and improvement of the street.

These mills are built on the northern portion of the lot, which is below Brook street, as improved in 1846, from five to eight feet, where these mills are situated, and some twenty-five feet at the intersection of Brook and Washington, and along the latter. These are extensive mills, giving employment to one hundred and twenty-five to one hundred and fifty operatives, and doing, yearly, half a million dollars amount of business. Their only outlet to the river is through Brook street, as Floyd street is not so improved, between Washington street and the river, as to admit of the hauling of the very large amount of iron, coal, & c., which is essential to the business of these mills, there being no bridge across Beargrass creek on this street. Fulton street lays between Water street and the river, parallel with both.

August 29, 1865, the city council enacted an ordinance to further improve Brook street, between Main and Fulton streets, at the expense of the owners of the lots, except that part between Main and Washington streets and the intersections, Main street being south and parallel to Washington street; and according to this ordinance, appellees aver that the regrading will raise...