City of Owensboro v. Singleton

• Decision Date: 12 June 1908
• Citation: 111 S.W. 284
• Parties: CITY OF OWENSBORO v. SINGLETON.
• Court: Kentucky Court of Appeals

111 S.W. 284

CITY OF OWENSBORO v. SINGLETON.

Court of Appeals of Kentucky.

June 12, 1908

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

Action by Mary L. Singleton against the city of Owensboro. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

J. A Dean and Geo. W. Jolly, for appellant.

W. T Ellis, C. M. Finn, Miller & Todd, and R. W. Slack, for appellee.

HOBSON J.

Mary L Singleton owns a house and lot in the city of Owensboro, on Crittenden street, between Second and Third streets. The city council established the grade of Third street. The grade thus established required the street to be cut down about two feet in front of her property. The street was constructed upon the grade thus established, and she then brought this suit against the city, charging that her property was very much injured from the fact that two of her shade trees were destroyed; that two others were practically destroyed; that it would be necessary for her to build a retaining wall to protect her lot; and that even with this ingress and egress would be very much affected, and the value of the property depreciated. Her lot fronts on the street 75 feet. On a trial of the case she recovered a judgment for $425, and the city appeals.

It appears from the record that, though the street had been in the city for a number of years, the grade of the street had not been established. In City of Owensboro v. Hope (Ky.) 108 S.W. 873, it was held that a lot owner is not entitled to recover from a city for damages to his lot because of the original grading of the street where the grade has not heretofore been fixed, as the grade of the streets must be presumed to have been taken into consideration when the land was dedicated or acquired by condemnation. It was also held in that case that the establishment and maintenance for more than 15 years of improvements on lots adjacent to an ungraded street did not affect the right of the city to establish the grade, and that the delay of the city to fix the grade did not: estop it from fixing the grade when, in the judgment of the council, it became necessary. That case seems to be conclusive here. It is true that the street in this case has existed for a long time; but we do not see anything in the evidence to take the case out of the rule laid down in the case cited.

Judgment reversed, and cause remanded for a new...