City of Marion v. Paris

• Decision Date: 06 February 1931
• Citation: City of Marion v. Paris, 237 Ky. 305, 35 S.W.2d 311 (Ky. Ct. App. 1931)
• Parties: CITY OF MARION et al. v. PARIS et al.
• Court: Kentucky Court of Appeals

35 S.W.2d 311

237 Ky. 305

CITY OF MARION et al. v. PARIS et al.

Court of Appeals of Kentucky

February 6, 1931

Appeal from Circuit Court, Crittenden County.

Suit by Henry C. Paris and others against the City of Marion and others. From the judgment, defendants appeal.

Affirmed in part, and in part reversed, with instructions.

J. W Blue, Jr., C. S. Nunn, and John A. Moore, all of Marion, for appellants.

Postleweight & Postleweight, of Marion, and Pentecost & Dorsey, of Henderson, for appellees.

DIETZMAN J.

On April 25, 1929, the board of council of the city of Marion, a city of the fourth class, enacted an ordinance providing for the construction of certain streets of that city, the costs to be apportioned against the abutting property. The streets to be constructed were divided into several sections or projects; East Bellville street being assigned to section No 11. That part of East Bellville street which was to be improved extended from the east line of North College street to the west line of Cherry street, a distance of approximately 1,073 feet. The width of the street was to be 30 feet. Near the eastern end of East Bellville street as it was to be improved there crossed the roadway a small stream of water which rose about a half mile south of East Bellville street, and which drained a portion of the town and perhaps county south of that street. The plans and specifications for the improvement of East Bellville street provided for the crossing of this stream by a concrete box 4 by 8 feet. As the stream was to be straightened, it was to be made to cross the street diagonally, and, although the street was but 30 feet wide, the concrete box was 70 feet in length. As constructed this box would probably be called by the ordinary layman a "culvert," but the appellees insist that in truth it is a bridge. East Bellville street was constructed as planned. The culvert or bridge cost $1,600, and its cost was apportioned along with the cost of the rest of the street against the property abutting on that part of East Bellville street that was constructed. There was also included in the apportionment an item of $661.74 for what the city designated as "legal advice, administration," etc. Challenging the right of the city to include the cost of the culvert or bridge and this item of "legal advice and administration" in the cost of the street to be apportioned against the abutting property, as well as challenging other items in the apportionment, the appellees, abutting property owners, brought this suit to purge the apportionment of the challenged items. The court struck from the apportionment the cost of the culvert or bridge and the item of "legal advice, administration," etc., but denied the appellees any relief as to the other items challenged. Appellees rested satisfied with the court's judgment, but the defendants below have appealed.

We do not deem it necessary to determine whether the concrete box was in fact a culvert or a bridge. In either event, its cost was properly included in the cost of the street and properly apportioned against the abutting property. The cases of City of Hazard v. Adams, 229 Ky. 598, 17 S.W.2d 703 where the structure was called a culvert, and Downing v. City of Chinnville (Ky.) 34 S.W.2d 961, decided January 23, 1931, where the structures were called bridges, fully sustain the appellants in such contention. Their reasoning need not be repeated here. Appellees would distinguish the Hazard Case and no doubt the Chinnville Case but for the fact that it had not been decided when they briefed this case, on the ground that as shown by the record East Bellville street is a part of the route through the city of several state and county highways which focus just east and west of the city limits of Marion. But that East Bellville street, being one which perhaps the state highway commission might have shared the cost of the building, did not prevent the city from itself building such street, was held in Shaver et al. v. Rice, 209 Ky. 467, 273 S.W. 48. The case of City of Pineville v. Robbins, 232 Ky. 218, 22 S.W.2d 607, 609, is relied upon by the appellees. In that case, the city decided that the bridge was not a local improvement but one general to the community. The size and character of the structure as well as its use justified the decision. The decision was not rested alone on the use, for, were that the law, the county could be compelled to pay for street construction in cities as well as bridge construction. The size, character, and cost of the structure plays as important a part in the rule as does its use. That this is so may be seen from this excerpt from the opinion: "Culverts, or such small bridges as are essentially a part of the...