City of Monticello v. Bates

• Decision Date: 19 February 1915
• Parties: CITY OF MONTICELLO v. BATES.
• Court: Kentucky Court of Appeals

173 S.W. 159

163 Ky. 38

CITY OF MONTICELLO v. BATES.

Court of Appeals of Kentucky.

February 19, 1915

Appeal from Circuit Court, Wayne County.

Action by the City of Monticello against H. Bates. From a judgment dismissing the petition rendered on sustaining a demurrer thereto, the City appeals. Reversed, with directions.

O. B Bertram and Joe Bertram & Son, all of Monticello, and James Garnett, of Frankfort, for appellant.

Duncan & Bell and Harrison & Harrison, all of Monticello, for appellee.

TURNER J.

The city of Monticello is the county seat of Wayne county, and is a city of the fifth class. In 1904 there was enacted by the authorities of the city an ordinance providing that no one should erect any building or structure therein without the permission of the board of trustees of the town, and providing that any violation thereof should be punished by fine not to exceed $100. By another section it was provided that no such building or structure should be erected until the party desiring to erect the same should file with the town clerk an application for a permit so to do, together with the plans and specifications of the proposed structure and that any building or structure erected without such permission would be subject to removal by order of the trustees at any time within 12 months after the erection thereof, at the expense of the owner. In May, 1905, the city council passed another ordinance fixing a fire district within said city, and provided that the city authorities should not grant a permit to erect or repair any building within the said fire district except out of brick or stone. On the 13th of April, 1914, appellee made application in writing to the mayor and city council for a permit to erect a building within the fire limits. Said application is as follows, to wit:

"Monticello, Kentucky, April 13, 1914.

To the Honorable Mayor and City Council of Monticello, Kentucky--Gentlemen: I respectfully ask that I be granted a permit to erect a garage on the lot recently purchased by me adjoining the Kuffaker lot and fronting the post office on Cross Main street. Said building to be 36X80 feet, 18 feet high and what is known as a brick veneered building, as follows, to be framed and sheathed with four inch of brick outside of said sheathing, same to have a steel or galvanized roof.

Respectively, H. Bates."

At said meeting the council, after considering said application, granted the permit as shown by the following order then entered, to wit:

"Upon motion and second it is ordered that H. Bates be and he is hereby granted a permit to erect a brick veneered building on his lot on Short street in the town of Monticello, Kentucky. Said lot being on the south side of Short street and being the same lot purchased by said Bates from Nannie Oats. Said building to be 30 feet wide and 80 feet long and the frame shall consist of sills and studding and plates and rafters; the studding to be not less than 8 feet apart and the roofing to be of metal. The brick veneering of said building shall be made of whole brick, no bats to be used, and said brick veneering shall be built from the ground and extended to the eaves of said building so that none of the wood framing will be exposed, except on the side of said building next to the J. C. Huffaker building and in front. On the side of the building next to J. C. Huffaker's building said brick wall shall extend above the eave of said building so as to make and constitute a fire wall. The brick veneer in front shall be built up square with the fire wall and shall make and constitute a fire wall for the front of said building. Said building be completed as to the framing, brick veneering and roofing, that is said building shall be fully completed as to all parts before same shall be used or occupied for any purpose. Said building when

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