City of Owensboro v. Hope

• Citation: 128 Ky. 524,108 S.W. 873
• Parties: CITY OF OWENSBORO v. HOPE.
• Decision Date: 24 March 1908
• Court: Kentucky Court of Appeals

108 S.W. 873

128 Ky. 524

CITY OF OWENSBORO v. HOPE.

Court of Appeals of Kentucky.

March 24, 1908

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by Nicholas Hope against the city of Owensboro. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

George W. Jolly, for appellant.

Wilfred Carico and Watkins & Birkhead, for appellee.

O'REAR C.J.

This action at law was filed in the Daviess circuit court by appellee Hope against the city of Owensboro for the recovery of damages alleged to have been sustained by him by the lowering of the established grade in constructing a macadam roadway opposite his property. The plaintiff's lot fronts on the east side of Clay street, and fronts 40 feet extending back east, and was used as a residence. In building the new street, on the new grade, it is alleged the street was lowered 3 1/2 feet, and that he had shade trees in front of his house on his lot which would be destroyed. The petition states: "He further states that the defendant city, by an ordinance duly enacted, approved, and published ordered and directed this plaintiff to lower his said sidewalk from its present position to the grade established aforesaid. To do this he says that he will be required to excavate the whole of the front of his said lot to a depth of 3 1/2 feet, which will necessitate a new concrete sidewalk, a retaining wall of at least 3 1/2 feet in height, and steps or a stairway to enable him and others to get from Clay street to his said lot and residence. The said excavation will destroy his said shade trees in front of his said property. He says all of this has been made necessary by the excavation and changing of the grade of the said street in front of his said property. He further states that the said excavation on said street has destroyed his ingress to and egress from his said property, and that by reason of said excavation of said street and lowering of its grade the plaintiff had been damaged in the sum of at least $750." Prior to the improvement of the street by having it graded, macadamized curbed, and paved as recited, it appears to have been laid out as a street; its natural surface being used for such travel as had occasion to traverse it. It is gathered from the record that the locality in that vicinity was but sparsely settled, and not until the work now in question was ordered by the council had the city taken any steps to establish the permanent grade of the street or of its sidewalks. Notwithstanding appellee and others saw proper to erect buildings and fencing, and to set out shade trees adjacent to the street, upon the assumption that the city would never alter the natural grade of the street, or that if it did, appellee and other property holders could claim compensation for damages thereby inflicted upon their abutting property.

A city authorized to establish, grade, and regrade the streets within its territory assumes a certain public duty with respect to these highways. Its judgment or discretion as to the time when and as to the manner in which the highway shall be improved is generally beyond review, and absolutely so unless in the plan or manner of making or maintaining the improvements it acts with culpable negligence. When a strip of land is dedicated, or is acquired by condemnation, for the purposes of a highway, it is implied that it may be graded so far as may be necessary to fit it for the purposes for which it was set apart; and, in either case, it will be presumed that the dedicator, or the jury in awarding compensation under the writ of ad quod damnum, have estimated the inconvenience of the owner and injury to his remaining property likely to ensue from the necessary and proper grading of the surface. And, until the municipality has once exercised its right to grade the street, the adjacent lot owners have notice that its surface is subject to such change as the municipality may order in the fair exercise of its discretion when it sees proper to improve the highway.

Some authorities hold that the duty of a municipality to grade its streets as may be necessary is a continuing one, and, when the power is granted by the Legislature, cannot be abrogated by contract or act of estoppel. Smith's Modern Law of Municipal Corporations, § 318; Elliott, Streets and Roads, 343 et seq; Dillon, Municipal Corporations, § 686; Goszler v. Georgetown, 6 Wheat. (U. S.) 593, 3 L.Ed. 339. But a distinction is recognized between the rights of abutting owners where no grade has before...