City of Louisville v. Hegan

• Decision Date: 23 February 1899
• Citation: City of Louisville v. Hegan, 49 S. W. 532 (Ky. Ct. App. 1899)
• Parties: CITY OF LOUISVILLE v. HEGAN et al. [1]
• Court: Kentucky Court of Appeals

49 S.W. 532

CITY OF LOUISVILLE v. HEGAN et al. ^[1]

Court of Appeals of Kentucky.

February 23, 1899

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by Mary P. Hegan and others against the city of Louisville to recover damages for injury to property. Judgment for plaintiffs, and defendant appeals. Affirmed.

H. L Stone, for appellant.

Phelps & Thum, for appellees.

PAYNTER J.

The appellees own a house and lot on Catalpa street, in Parkland in the city of Louisville. The house was built with reference to the grade of the street as originally constructed. In lowering the grade of the street four or five feet, it is claimed that their property was greatly damaged, and this action was brought to recover damages resulting from the action of the city in thus lowering the grade of the street. It is unnecessary to state specifically the condition in which the lot was left when the work was completed.

Two of the instructions which the court gave the jury read as follows: "(2) But, in making the grade of said street the city had no right to injure the value of the plaintiff's property, if it did so injure it, without making her compensation therefor; and if the jury shall believe from the evidence that the said property was injured or diminished materially in value by the city excavating Catalpa street to its present grade, and that plaintiff was thereby damaged more than the general public, then the law is for the plaintiffs, and the jury should find for them in such an amount as fairly represents the amount in which the market value of said property was thereby diminished, if its value was so diminished, not exceeding the sum of $1,000, the amount claimed in the petition. Given. Emmet Field. (3) If the jury find for the plaintiffs, they should ascertain from the evidence the market value of the said property just before it became known that the city would lower the grade of Catalpa street, and its market value after the street was made, and award the difference in said values, if any there is, to plaintiffs, not exceeding the amount claimed in the petition. If they find for the defendant, they will say so, and no more. Given. Emmet Field."

Counsel for the appellant insists that, under the law as it existed before the adoption of the present constitution, the instructions would have been erroneous, and that section 242 of that instrument has not changed the...