Embry-Bosse Funeral Home, Inc. v. Webster

• Decision Date: 23 October 1953
• Docket Number: EMBRY-BOSSE
• Citation: 261 S.W.2d 682
• Parties: FUNERAL HOME, Inc. v. WEBSTER et al.
• Court: United States State Supreme Court — District of Kentucky

Page 682

261 S.W.2d 682

EMBRY-BOSSE FUNERAL HOME, Inc. v. WEBSTER et al.

Court of Appeals of Kentucky.

Oct. 23, 1953.

W. A. Armstrong, Ellis E. Blake, Louisville, for appellant.

Randolph A. Brown, William E. Burbank, Louisville, for appellees.

MILLIKEN, Justice.

The appellant, Embry-Bosse Funeral Home, Inc., has its place of business at the corner of Preston Highway and Melford Avenue in the Preston Place Subdivision in the Town of Parkway Village, Jefferson County, Kentucky, and also owns two lots directly behind it on Melford Avenue, the use of which is restricted to the erection of family residences or apartment houses. Melford Avenue is a fifty-foot dedicated strip of land, the center sixteen feet of which is paved, leaving a seventeen-foot strip on each side of the pavement which contains water meters and the physical apparatus of the public utilities. There are no sidewalks along the street, and the residenters, including the appellees, have treated the seventeen-foot strips as if they were part of their front yards. The appellant, Funeral Home, attempted to use the two restricted lots it owns on Melford Avenue for parking purposes in connection with its business, and, when enjoined from so doing, converted into parking space the seventeen-foot strip along the Melford Avenue side of its unrestricted corner lot and along the front of its two restricted lots on Melford Avenue. This is an appeal by the Funeral Home from a permanent injunction issued by the chancellor directing the discontinuance of the practice.

We have little trouble sustaining the chancellor in prohibiting the use of the two restricted lots for the purpose of parking automobiles, and there appears to be no serious contention about that phase of the injunction. Bennett v. Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d 910. However, the injunction against the use of the seventeen-foot strip for parking purposes connected with appellant's business presents a more complicated matter. We are not favored with the details of the dedication of Melford Avenue, but assume that the titles to the lots adjoining it extend to the middle of the fifty-foot strip dedicated for street purposes in accordance with the common law rule which prevails in Kentucky. Goodloe v. City of Richmond, 250 Ky. 608, 63 S.W.2d 785. If that is true, there is logic in the contention of the appellees that the restrictive covenants applicable to the Melford Avenue lots extend over that portion of Melford...