Eversole v. Walsh

• Decision Date: 28 October 1903
• Citation: 76 S.W. 358
• Parties: EVERSOLE v. WALSH.
• Court: Kentucky Court of Appeals

76 S.W. 358

EVERSOLE v. WALSH.

Court of Appeals of Kentucky.

October 28, 1903

Appeal from Circuit Court, Laurel County.

"Not to be officially reported."

Action by M. F. Walsh against H. G. Eversole. Judgment for plaintiff, and defendant appeals. Affirmed.

P. F. Stillings, for appellant.

Charles R. Brock, for appellee.

HOBSON, J.

This is a suit to enforce an apportionment warrant for the construction of a sidewalk in the town of London, Laurel county. The amount of the warrant was $123.50, and it was shown that appellant's property was enhanced in value $200 by the improvement. Section 3706, Ky. St. 1899, under which the work was done, does not require the town trustees to allow the owner the privilege of doing the work. Still the fact that they gave him this privilege did not invalidate the ordinance. Board of Councilmen v. Murray, 99 Ky. 422, 36 S.W. 180. And as the council was not required by the statute to give appellant the privilege of doing the work, he cannot assail the ordinance because the opportunity afforded him by it for doing the work was not sufficiently ample, as it was all a mere matter of grace on the part of the trustees.

It is also objected that the grade of the street was not fixed, but the proof is otherwise. The work was accepted by the council, and there is nothing to show any bad faith on their part in accepting it. Appellant, after the work was accepted by the trustees, cannot be allowed to escape paying for it by mere proof that the work was not done in accordance with the ordinance. Purdy v. Drake (Ky.) 32 S.W. 939; Allen v. Woods (Ky.) 45 S.W. 106; Henderson v. Lambert, 77 Ky. 24; Joyes v. Shadburn (Ky.) 13 S.W. 361.

Judgment affirmed.