City of Williamsburg v. Perkins

• Decision Date: 19 June 1931
• Citation: 240 Ky. 160,41 S.W.2d 915
• Parties: CITY OF WILLIAMSBURG v. PERKINS et al.
• Court: Kentucky Court of Appeals

41 S.W.2d 915

240 Ky. 160

CITY OF WILLIAMSBURG v. PERKINS et al.

Court of Appeals of Kentucky

June 19, 1931

Rehearing Denied Oct. 6, 1931.

Appeal from Circuit Court, Whitley County.

Action by the City of Williamsburg against T. C. Perkins and others. From an adverse judgment, plaintiff appeals.

Reversed with direction.

J. B Johnson and A. M. Caddell, both of Williamsburg, for appellant.

Stephens & Steely, of Williamsburg, for appellees.

BRATCHER J.

This action was instituted in the Whitley circuit court by the city of Williamsburg, Ky. to enforce a street improvement assessment upon the property of the appellees.

Williamsburg is a city of the fifth class. The authority by which this lien is sought to be enforced is found in sections 3643-1 to 3643-12, Carrolls Kentucky Statutes. The improvements were made under what is commonly designated as the ten-year bond plan. The appellees, who were the defendants below, are the owners of a parcel of real estate fronting and abutting on both Fifth street and Ridge avenue in the city. Their residence on this property faces on Fifth street. This property was purchased in three separate lots, but they were considered in the lower court as one lot, and are here considered as one. Fifth street and Ridge avenue converge into a common street just north of this lot. The apex however, is occupied by a memorial. It fronts 144 feet on Fifth street and 142 feet on Ridge avenue. For several years the city of Williamsburg has engaged in considerable street improvement. As a part of that general plan, property has been assessed to pay for the improvement. In 1924, by duly enacted ordinance, the city improved Fifth street in front of appellees property, and assessed his property for the improvement of 144 feet at $865.87. In 1928 the city by ordinance duly enacted ordered the improvement of Ridge avenue, which is on the back side of appellees' property and pursuant to that order a concrete street was built along 142.3 feet of his property and an assessment of $604.89 made against the property. This he refused to pay. This action was instituted to enforce the payment of the improvement assessment, and, from a judgment dismissing the petition, the city appeals.

The appellees' defense to the petition set out two grounds: (1) That the property was worth not more than $1,000 and that only 50 per cent. of the value of the property could be taken for the improvement, and that this assessment exceeded that limitation; (2) that, before the construction of Ridge street, there had been an improvement assessment on Fifth street costing $865.57, and that they were entitled a credit for that amount before assessment could be made for this property. The answer further averred that the assessment as proposed by the city was confiscatory, and, upon a plea of spoliation, the court was asked to put a value upon this property as a basis of assessment. By agreement of the parties, it is admitted that all the ordinances were legal and regularly passed. The court placed a valuation of $1,750 upon the property, and for the purpose of this appeal that is admitted as the value of the property. The trial court held that under this valuation $875 was the limit that the city could assess against the property for street improvements. It further held that, in determining this amount, the assessment of $865.87 under the ordinance passed March 12, 1924, and a further sum of $65 for construction of sidewalks making a total of $930.87, should be credited upon this assessment, and, using the words of the judgment, "It appears that a total amount which the city of Williamsburg could assess for street and sidewalk improvements is only $875.00 and that said defendants have heretofore paid on account of street and sidewalk construction the full sum of $930.87 on Fifth Street. It is now and hereby adjudged that the plaintiff is not entitled to recovery from said lot in this proceeding any sum or amount." The correctness of that judgment is before us for determination.

Section 3643-1 of the Kentucky Statutes reads in part as follows:

"The cost and expense incurred in constructing, reconstructing and laying sidewalks, curbing, streets, avenues, highways, public places, sewers, water-mains and connections with sewers and water-mains shall be paid out of the general fund of the town, or by the owners of lands fronting and abutting thereon, as the board of council may in each case determine; or the said council may order and direct that two-thirds only of said cost and expense so incurred shall be paid by the owners of the lands fronting and abutting said improvements and the other one-third paid by the city, but the local assessment, therefor, shall not exceed fifty per centum of the value of the ground after such improvement is made, excluding the value of buildings and other improvements upon the property so improved. Provided that an additional one dollar ($1.00) per front and abutting foot may be assessed for the constructing and laying of water-mains as provided herein. Each subdivision or territory bounded on all sides by principal streets shall be deemed a square. When the territory contiguous to any public way is not defined into squares on either or both sides by principal streets the ordinance providing for the improvement for such public ways shall be the depth on the side or sides not defined in the square fronting said improvement, to be assessed for the cost of making the same, according to the number of square feet owned by the parties, respectively, within the depth set out by ordinance."

The assessments made against this property in 1924 for $930.87 and in 1928 for $634.80 is far in excess of the 50 per cent. of the valuation placed upon the land by the court and before us as the true valuation here. The assessments were made in less than five years. To make a plan for the payment of improvements, section 3643-1, provided that this might be done by assessment against the abutting property owners, but not to exceed 50 per cent. of the valuation of his property. By section 3643-5, the city was entitled to issue bonds payable in ten equal yearly installments. By section 3643-9, a lien to insure these bonds was created on the abutting property. The limitations placed upon a city council in making these assessments was meant to protect the property owners from exorbitant or repeated assessments that would amount to confiscation of the property and to further safeguard the purchaser of the bonds by limiting their issuance to 50 per cent. of the property improved.

The trial court held that the two assessments should be treated as one, fixing the amount that the city could assess, and, as that exceeded the limitation fixed by the statutes, it dismissed the petition. The city of Williamsburg contends that this property should be treated as corner property, or, if not corner property, then abutting on two principal streets, and as such should not be limited to a 50 per cent. valuation independent of the charge against it for the other street, and cites City of Covington v. Schlosser, 141 Ky. 838, 133 S.W. 987, 988. In that case the court in a lengthy discussion said:

"Counsel for appellees insist that, when a city has assessed a corner lot for the improvement of the street or public way on either street in a sum equal to one-half the value of the lot, it is thereby estopped from assessing against the lot the cost of improving the street or public way on the other street, and that the charge for constructing sewers is to be treated as a part of the improvement of the street or public way in determining the amount that may be assessed; while counsel for the city contends that the city has the power to charge a corner lot with the cost of street and public way improvements on each street to the extent of

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