Downing v. Town of Chinnville

• Decision Date: 23 January 1931
• Citation: Downing v. Town of Chinnville, 237 Ky. 121, 34 S.W.2d 961 (Ky. Ct. App. 1931)
• Parties: DOWNING et al. v. TOWN OF CHINNVILLE et al.
• Court: Kentucky Court of Appeals

34 S.W.2d 961

237 Ky. 121

DOWNING et al. v. TOWN OF CHINNVILLE et al.

Court of Appeals of Kentucky

January 23, 1931

Appeal from Circuit Court, Greenup County.

Suit by Walter Downing and others against the Town of Chinnville and others. From a judgment dismissing the petition, petitioners appeal.

Affirmed.

Waugh &amp Howerton, of Ashland, for appellants.

John T Diederich, of Ashland, for appellees.

DIETZMAN J.

By ordinance, duly enacted, the board of trustees of the town of Chinnville, a municipality of the sixth class, situated in the county of Greenup, ordained that certain streets of the town should be constructed at the exclusive cost of the property abutting on the streets to be improved. Pursuant to this ordinance, contracts were let and the work was done at a total cost of $65,709.23. Across three of the streets which were thus improved there ran a small ravine through which flowed a stream of water. It was necessary, of course, to carry the streets across this ravine. Instead of using the culvert method of construction, the trustees decided to cross the ravine by bridges and so ordained in the improvement ordinance. The bridges which spanned this ravine were from eighteen to twenty feet in length. One of them cost $3,433.70, and the other two, $1,328.40 and $1,330.96 respectively. The cost of these three bridges were assessed against all of the streets, eight in number, which were improved under the ordinance referred to.

Appellant as a citizen and taxpayer and as an owner of a lot fronting on one of the streets which bridged this ravine and which was improved under the ordinance mentioned, brought this suit for himself and all others similarly situated for the purpose of purging the cost of the three bridges from the apportionment laid against the property abutting on all eight streets for the street improvement and, if unable to do this, then to correct the method of apportionment of the cost of the bridges by apportioning the cost of each bridge against the property abutting on the street which crossed the ravine by the bridge in question, instead of apportioning the cost of all of the bridges against the property abutting on all eight of the streets which were improved as provided in the improvement ordinance. A demurrer being sustained to his petition, the appellant declined to plead further and his petition was dismissed. He appeals.

The first question to be decided is whether the cost of a bridge like those here involved can be included in the cost of a street carried across a ravine such as we have here and, being so included, be apportioned with the cost of the rest of the street against property abutting on the street thus improved.

In the case of City of Hazard v. Adams, 229 Ky. 598, 17 S.W.2d 703, 704, there was involved the apportionment of the cost of an improved street which had been carried across a stream by means of a large culvert, the construction alone of which cost $1,327. Holding that the cost of constructing the culvert was properly included in the cost of the street which was apportioned against the property abutting on the street, we said:

"Manifestly, the improvement contemplated all construction necessary and indispensable to a completed street, and these culverts, although of large dimensions (4 by 5 by 75 feet), and costly to erect, were essential. There could have been no street without bridging the stream in some manner. The facts appearing in Wendt v. Tucker, 185 Ky. 626, 216 S.W. 61, are not materially different from those presented in this case, and the law therein declared is entirely applicable. See also City of Covington v. Sullivan, 172 Ky. 534, 189 S.W. 709; Janutola & Comadori Const. Co. v. Taulbee, 211 Ky. 356, 277 S.W. 477 (involving construction of East Main street, of Hazard); Board of Councilmen, etc., v. Jillson, 225 Ky. 61, 7 S.W.2d 859. The construction of the culverts and the assessments for the cost against the property holders were duly authorized, and it cannot be said that the inclusion of their cost in the street assessments is depriving the owners of abutting lands of their property without due process of law, as appellees contend."

We can see no sound distinction between that case and the instant one. In this...