City of Newport v. Rosing

• Decision Date: 24 October 1958
• Citation: 319 S.W.2d 852
• Parties: CITY OF NEWPORT, a Municipal Corporation, Appellant, v. Frank A. ROSING, Jr., et al, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 852

319 S.W.2d 852

CITY OF NEWPORT, a Municipal Corporation, Appellant, v. Frank A. ROSING, Jr., et al, Appellees.

Court of Appeals of Kentucky.

Oct. 24, 1958.

Rehearing Denied Feb. 6, 1959.

Charles J. Schear, City Solicitor, Newport, for appellant.

Thos. W. Hardesty, Newport, for appellees.

CLAY, Commissioner.

After a consolidated jury trial the two plaintiff appellees each recovered a judgment for $17,000 against appellant, City of Newport, as damages for the destruction of their homes. On this appeal the city contends there are many reasons why the judgments are erroneous.

Plaintiffs each owned a modern home located in a residential section of the city on New Linden Road. The ground sloped to the rear and terminated in the channel of a creek on the plaintiffs' properties.

In June of 1956, after a series of very heavy rainfalls, the creek flooded and the homes of residents who lived on the opposite side were damaged. This flooding was caused in part by the fact that the channel of the creek had filled up.

The city decided to dig out the creek channel to improve the drainage. It obtained from the abutting property owners a 'Release' which relieved the city of liability for trespass upon the owners' property during the progress of the work, or by reason of damage to improvements in the creek bed area.

The city undertook to widen and deepen the channel. In the course of this work the toe of the slope from plaintiffs' properties was cut off. This removed lateral support from these lands, causing the land and the houses thereon to slide toward the creek, completely destroying the homes.

The essential facts in this controversy are not in dispute. The city, in undertaking a public improvement, destroyed the property of adjoining landowners. This constituted a 'taking' of property under section 242 of the Kentucky Constitution, and the municipality must pay just compensation therefor by way of damages. Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353. In the first case cited, it is stated, 15 S.W.2d at page 522:

'The removal of the lateral support of premises bordering on a highway, in making highway improvements, to the extent of causing a substantial part of the adjoining owners' land to subside and fall so as to injure the premises affected, is to all intents and purposes an invasion of private property rights; and appropriation of the soil to the extent of such injury, and amounts to a taking of property for public use.'

For a recent review of our cases involving the problem of municipality liability, see V. T. C. Lines, Inc. v. City of Harlan, Ky., 313 S.W.2d 573.

Ignoring this fundamental principle of liability, the city has interposed a series of ingenious defenses. For example, it argues that the law of lateral support only applies between adjoining landowners, and since the city was not an adjoining landowner, it could not be liable. It seems unnecessary to discuss such a proposition.

The city contends that by...