City of Russell v. Ironton-Russell Bridge Co.

• Decision Date: 06 May 1932
• Citation: 249 Ky. 307,60 S.W.2d 628
• Parties: CITY OF RUSSELL v. IRONTON-RUSSELL BRIDGE CO.
• Court: Kentucky Court of Appeals

60 S.W.2d 628

249 Ky. 307

CITY OF RUSSELL v. IRONTON-RUSSELL BRIDGE CO.

Court of Appeals of Kentucky

May 6, 1932

As Modified on Denial of Rehearing June 16, 1933.

Appeal from Circuit Court, Greenup County.

Proceedings by the City of Russell to annex certain property wherein the Ironton-Russell Bridge Company filed a remonstrance. From the judgment, the City of Russell appeals.

Affirmed.

RATLIFF J., dissenting.

John T Diederich, of Ashland, for appellant.

A. V Pollock, of Greenup, and A. R. Johnson, of Ironton, Ohio, for appellee.

DRURY C.

By appropriate steps the city of Russell, hereinafter called the city, sought to make an extension of its territorial limits, a remonstrance was filed by the Ironton-Russell Bridge Company, hereinafter called the Bridge Co., and the city, having been unsuccessful, has appealed. The territory proposed to be annexed is a part of the territory sought to be annexed in Gilley et al. v. City of Russell, 212 Ky. 798, 280 S.W. 101, and much said there is applicable here, nevertheless we have re-examined and reconsidered the question.

Russell is a fourth class city, it was proceeding under section 3483, Ky. St., and the steps taken were in strict accord with the statute.

The strip sought to be annexed is thus described:

"Beginning at a point at low water in the Ohio River at the north corner of Lot No. 13, of the plat of Rice & Kidds addition to Russell in Greenup County, Kentucky, dated August, 1909, and recorded in Book 39, last page, said point being in the west line of Rice & Kidds purchase and the west side line of Vernon Street produced to low water line, and also the west corporate line of the City of Russell thence southeasterly along and with low water line of the Ohio River and the present corporation line of the City of Russell, Kentucky, 4,750 feet more or less to the mouth of Bear Run at the east corporation line of the city of Russell, Kentucky, thence crossing the Ohio River N 60 W 1020 feet more or less to low water line of said Ohio River on the Ohio side of same; thence northwesterly along and with low water line on the Ohio side of the river 4,750 feet; thence S 60 W 900 feet more or less to the point of beginning."

In other words, the city is seeking to annex that part of the Ohio river which lies immediately in front of it. The present boundary of the city as fixed by chapter 591 of Loc. & Priv. Acts 1873-74 is: "Beginning on the Ohio River at the mouth of a creek, at lower end of Carner's Grove; thence south sixty-two degrees west to the top of the ridge of the river hill; thence in a southern direction along the top of said ridge and down the hill to Bear Run; thence down the meanderings of same to the Ohio River; thence down the Ohio river to the place of beginning."

The contention of the city is that as the territory between the low-water mark on the Kentucky shore and the thread of the stream is, so the city says, already within the corporate limits of the city of Russell by reason of the description in the act of 1874, which, it argues, is for all practical purposes exactly "on all fours" with the act construed in the Covington Bridge Cases (City of Covington v. State Tax Com. et al.), 231 Ky. 606, 21 S.W.2d 1010, as applied to the northern or Ohio river boundary of said city, and, it further appearing that the Bridge Co. is, so the city contends, only a trespasser on property owned by the state of Kentucky and Greenup county, that it is therefore, as the city views it, not an "owner" of real estate within the purview of section 3483, Ky. St., and, consequently, as the city insists, not qualified under the statute to make any objections.

We are not called on in this case to say what is the northern boundary of the city, and hence we are expressing no opinion on that subject. Admitting, for the sake of argument only, that the city is right, what difference does it make?

The Bridge Co. owns this bridge spanning the Ohio river. The bridge is either real or personal property. If personal property, it is in its entirety taxable at the site of the chief office of the Bridge Co., which is in Russell, Ky. From the maps in this record it appears that something like 600 or 700 feet of this bridge and the approach to it is south of the low-water mark on the Kentucky side of the river, and the Bridge Co. admits that is real estate, and so lists it, and the Bridge Co. is so taxed thereon by the city of Russell. The property is so listed and taxed, and the city tax imposed and collected thereon, in 1930, was $984. As one walks across this bridge from Russell over to Ironton, Ohio, a point is finally reached, where the northern boundary of the city of Russell is crossed, whether this is at the point where the bridge crosses the low-water mark on the Kentucky side of the river or at the point where it crosses the thread of the stream in the river, makes no difference and we express no opinion regarding the location of that point, but until that point is reached this bridge is admittedly real property, and, as there is no difference in the nature of the bridge north of that point from that south of that point, wherever that point may be, and as the Bridge Co. owns all the bridge, it follows the Bridge Co. owns real estate beyond the present limits of Russell and within the territory proposed to be annexed, and that it is qualified to oppose this annexation as the "owner of real estate in the limits of the proposed extension."

The city bottoms its contention upon this which it alleges in its brief has been adopted as the rule in Kentucky: "That the ability of the city to impose, and the liability of property to be compelled to pay city taxes is not enough to prevent a proposed annexation." We shall examine the authorities cited to see if such a rule has been adopted.

In Summers et al. v. Town of Elsmere, 55 S.W. 682, 21 Ky Law Rep. 1525, there had been a town site platted and laid out on both sides of the Q. & C. Railway. There were four principal streets leading through this town site to the Lexington turnpike. The territory south of the railroad had been incorporated as the town of Elsmere, and thereafter it undertook to annex the territory north of the railway which was called "South Erlanger," and was a part of this same town site and used these same...