City of Louisville v. Hehemann

• Decision Date: 10 December 1914
• Citation: 171 S.W. 165,161 Ky. 523
• Parties: CITY OF LOUISVILLE v. HEHEMANN ET AL.
• Court: Kentucky Court of Appeals

171 S.W. 165

161 Ky. 523

CITY OF LOUISVILLE v. HEHEMANN ET AL.

Court of Appeals of Kentucky.

December 10, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Lula B. Hehemann and others against the City of Louisville. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. J O'Connor and Pendleton Beckley, both of Louisville, for appellant.

Gilbert Burnett, Burnett & Burnett, and Benjamin F. Gardner, all of Louisville, for appellees.

NUNN J.

In 1909 and 1910 Cabel street was used as a city dump. Appellees recovered a judgment for $500 against the city of Louisville for the injury this dump caused to their property, and damage in their use of it. They owned and lived in a little two-room house on Pocahontas alley in the "Point." The property reached back 150 feet to Cabel street. In 1909, when the city began to create the nuisance complained of, these two rooms sheltered the appellees and their eight children. The territory of the Point is low and flat and subject to periodical overflows. The city desired to raise the grade of Cabel street, and was encouraged in this move by petition of the residents adjacent to the street, including appellees. The proposed fill extended through the point for about 2,000 feet.

During the summer months of 1909, this work of filling became in reality a city dump, and especially was this so in the vicinity of the Hehemann home. All sorts of decaying animal and vegetable matter were brought there and dumped day after day. Witnesses tell of seeing on the dump, not only backdoor refuse and vegetable garbage, but dead rats, cats, dogs chickens, and barrels of spoiled fish. This became a putrifying mass, from which constantly arose unmentionable odors and such a flock of flies and vermin as commonly come with carrion; all going to make human existence terrible in that vicinity. Some excuse is offered in behalf of the city by evidence that dead fish, fowls, and animals were brought there by individuals, not the city, and without the knowledge of the city's responsible officials. But responsibility cannot be escaped when it is shown that the city kept there every day during working hours a dump boss, who was in a position to control the situation, and when there is abundant evidence to show that the offensive material was so disposed of with his knowledge and direction, and many of these carcasses were dumped from city garbage wagons.

Such conflict as there is in the evidence goes to conditions existing at different places on the fill. They were not all bad. For instance, toward the corner of Cable and Fulton, where the street commissioner lived, and also at a place where another city officer lived, the material was cinders and dirt taken from excavations in and about the city.

All of appellees' children were taken down with sickness which continued from three weeks to a year. Two of them died of meningitis. Their illness began with dysentery and went into typhoid. The attending physician testified that in all probability all the sickness was directly traceable to the unsanitary dump we have described.

In the collection and disposition of garbage, undoubtedly the city acts for the public health and discharges a governmental function. In this regard, it is an agent or arm of the commonwealth, and for that reason is absolved from liability for the negligence of its employés.

But there is an element of wrong complained of in this case, which goes beyond that. Conceding that a city dump is necessary for the public good, and that Cabel street was the proper place for it, still the city has no right to take or injure adjacent private property or the occupants in the use thereof without making compensation.

Section 242 of the Constitution requires that municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured, or destroyed by them. City of Paducah v. Allen, 111 Ky. 361, 63 S.W. 981, 23 Ky. Law Rep. 701, 98 Am. St. Rep. 422; ...