Cooper v. Nevin

• Decision Date: 03 April 1890
• Citation: 90 Ky. 85,13 S.W. 841
• Parties: COOPER v. NEVIN.
• Court: Kentucky Court of Appeals

13 S.W. 841

90 Ky. 85

COOPER v. NEVIN.

Court of Appeals of Kentucky.

April 3, 1890

Appeal from Louisville law and equity court.

"To be officially reported."

M. L Cooper appeals from a judgment against him, and in favor of Joseph Nevin, for an assessment against his property for street improvements.

John Barret and John Stites, for appellant.

Lane &amp Burnett, for appellee.

PRYOR J.

The ordinance in question was passed in accordance with the provisions of the city charter, and the only trouble arises from the manner in which the burden of payment was imposed on the property bordering on the improvement. Each subdivision of territory bounded on all sides by principal streets is ordinarily deemed a square, and such is the provision of the city charter; still, the territory between the streets may be of such dimensions, covering a large area, as would show not only the necessity, but the certainty, that such an area must at some time be subdivided into squares for public convenience, and therefore the city council, in ordering the improvement, will only extend the taxing district as far into the territory that is liable to this subdivision as that taxed on the opposite side of the improvement, where the territory has already been defined by squares surrounded by principal streets, as contemplated by the charter. The charter provides that, "where the territory contiguous to any public way is not defined into squares by principal streets, the ordinance providing for the improvement of such public way shall state the depths on both sides, 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 as set out in the ordinance." The improvement in this case was the construction of a carriage-way on Bank street 36 feet in width, from the center of Twenty-Fourth street to the east line of Twenty-Sixth street. The work was completed by the appellee, and accepted by the city. The court below gave a judgment against the appellant for his proportion of the cost of the entire improvement, ascertaining the contract price and making each property holder pay to the extent of the property owned that bordered on the improvement. This was error, if the appellant is right in his contention that the property taxed was included within squares, as defined by the charter, and not susceptible of subdivision. Bank street is bounded on the north by Portland avenue, on the south by St Xavier street, on the east by Twenty-Fourth street, and on the west by Twenty-Sixth street. Twenty-Fifth street divides the territory between Twenty-Fourth and and Twenty-Sixth, making two well-defined squares, and for a better illustration of the location of the property a diagram of the territory is hereto appended:

(Image Omitted)

It will be seen from this map that the territory between Bank street and Portland avenue, extending from Twenty-Sixth street to Twenty-First street, embraces 32 acres of land, and this area being surrounded by principal streets, but not subdivided the question presented is, does the charter in such a case determine the territory to be taxed and the mode of assessment, after the passage of a valid ordinance ordering the improvement, or is the entire question left to the city council? When not defined into squares by principal streets, the charter requires that the ordinance providing for the improvement "shall state the depths on both sides 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, as set out in the ordinance." The city council, regarding the territory north of Bank street, and between that street and Portland avenue, as not being within a square, fixed the depth on each side of the improvement to be assessed at a distance of 210 feet, thus taxing the area within the two defined squares bordering on the improvement, and south of Bank street, as directed or required by the charter, and running the same distance into the territory that had not been subdivided by the extension of Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth streets. The distance from Bank street to Portland avenue is 640 feet, and the distance from Twenty-Sixth street on the west to Twenty-First street on the east exceeds 2,000 feet. From Bank street south to St. Xavier street is a distance of about 420...