Henderson v. City of Lexington

• Decision Date: 09 June 1908
• Citation: 111 S.W. 318,132 Ky. 390
• Parties: HENDERSON et al. v. CITY OF LEXINGTON.
• Court: Kentucky Court of Appeals

111 S.W. 318

132 Ky. 390

HENDERSON et al. v. CITY OF LEXINGTON.

Court of Appeals of Kentucky.

June 9, 1908

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by the city of Lexington against W. H. Henderson and others to close an alley in said city. From the judgment rendered defendants appeal. Affirmed.

Allen &amp Duncan, Butler T. Southgate, and Falconer & Falconer, for appellants.

Shelby & Shelby, Morton, Webb & Wilson, and J. Embry Allen, for appellee.

CARROLL J.

This controversy grows out of the attempt of the city to close an alley. The record presents a number of questions that will make it necessary to state at considerable length the respective contentions of the parties, and, to afford a better understanding of the local situation, the following map has been copied from the record:

The alley in question is known as Ayers alley. It was 18 feet wide, and extended from Main street to High street, crossing Water street, which runs parallel with and about midway between Main and High streets. Water street has for some years been occupied almost entirely by the railroad tracks of the Chesapeake & Ohio Railway Company, and at the point where it crossed Ayers alley there were some four tracks. As a result of the occupation of Water street by the railroad, and the movement of trains and engines thereon, the alley crossing was exceptionally inconvenient and dangerous for vehicles and the traveling public. Three of the railroads entering Lexington, two of them having depots and terminal facilities in different parts of the city, desired to erect a union station into which all their passenger trains might run. This movement upon the part of the railroads met with the approval of the city authorities, and the result was a proposition upon the part of the railroad companies to erect a union station fronting on Main street, west of Ayers alley and extended back to Water street, on which street the train sheds for the accommodation of passengers in entering and leaving trains should be located. As a part of this scheme for the erection of the union station, it was contemplated that Ayers alley should be closed and a viaduct constructed from Main to High streets immediately west of and parallel with Ayers alley. The result of the negotiations between the city and the railroad companies was the erection of an ample and attractive station at the place proposed and the viaduct. This viaduct, where it crosses Water street, is elevated so as to permit the passage of trains. It is 43 feet wide, substantially built, and affords safe and easy passageway both for pedestrians and vehicles between the two streets. When the arrangement for the erection of the viaduct and the station had been perfected, the city enacted an ordinance, directing the closing of so much of Ayers alley as lay between a point 266 feet from the curb line of Main street to a point 192 1/2 feet from the curb line of High street. In other words, under the ordinance, the alley was closed by a wall erected on each side of Water street, so as to effectually prevent persons who used the alley on either the Main street or High street side from crossing Water street; the purpose being to have Water street at this point practically free for the use of the railroads that occupied it. The ordinance recited in a preamble the reasons for closing that part of the alley heretofore described, and directed the city solicitor to institute an action in the Fayette circuit court for the purpose of closing that portion of the alley described in the ordinance. It was enacted under the authority of an act of the General Assembly, approved March 22, 1906 (Acts 1906, p. 456, c. 130), providing, in part, that: "Upon the adoption of an ordinance by the general council authorizing and directing the closing of the whole or any portion of a street or alley or other public highway within the limits or jurisdiction of the city, it shall be the duty of the city solicitor to institute an action in the circuit court for the purpose of having the same closed, and to such action all the owners of ground in the squares or lots divided by such street, alley or highway, or the portion thereof proposed to be closed, shall be made defendants; and if all of such defendants are competent to act for themselves and fail to object to the closing prayed for, then the court shall render a decree accordingly; but if any of said defendants object, or are under disability other than coverture, the court shall impanel a jury, which shall hear evidence and determine the amount of compensation in the form of damages to be paid to each of such defendants. The court shall thereupon direct that said street, alley or other highway be closed upon payment to each of such defendants of the amount of damages awarded to him, or, if any defendant refuses to accept such payment or be for any reason unable to do so, upon payment into court of the amount awarded such defendant or defendants." As directed by the ordinance, the city solicitor brought this action, naming as defendants therein the railroad companies, who were equally interested with the city in its closing, and Alice McConathy, Mary E. O'Rear, W. H. Henderson, M. E. Combs, and W. E. Barron, the only persons who owned property abutting on the alley between Main and High streets. These property owners objected to the closing of the alley upon various grounds, some of which will be later noticed. The case coming on for trial, a jury was impaneled to assess the damages, and awarded to Henderson $3,500, to O'Rear $100, giving nothing to Barron. From the judgment upon this verdict, these parties prosecute this appeal.

Pending the action James McAllister, H. E. Wright, and J. P. Wright, who owned property fronting on Main street east of the alley and running back to Water street, offered to file their separate petitions to be made parties defendant. Upon objection by the city, their tendered pleadings were rejected. They also appealed, but have dismissed their appeal. Among the questions presented by counsel for appellants are: First. The constitutionality of the act of 1906. Second. The right of the city to close Ayers alley. Third. The necessary parties to the proceeding. Fourth. The right of each of the parties to have a separate trial. Fifth. The admission of evidence as to the amount of damage resulting to each of the parties, and the competency of other evidence rejected. Sixth. The correctness of instructions upon the measure of damages. Seventh. That the verdict of the jury is grossly inadequate. Eight. Whether or not the alley was closed to carry out an illegal agreement between the city council and the railroad companies for the purpose of granting to the railroad companies that portion of the alley proposed to be closed.

Taking up these questions in the order named, which is also the order of their importance from a public point of view, we will first consider the act of 1906. It will be observed that, under this act, the council may adopt an ordinance directing the closing of a street, alley, or public way, and thereupon an action shall be instituted against the owners of ground in the squares or lots divided by the street, alley or way proposed to be closed; and, if they object to the closing, the court shall impanel a jury to hear evidence and determine the amount of compensation to be paid. Under this act the city council is empowered to determine the necessity for the closing, as well as the question of whether the closing is for a public use; the only matter left by the terms of the act to the courts being to impanel a jury to ascertain the amount of compensation. The serious objection urged to the validity of this act is that it invests the city council with the sole authority to decide whether the closing is necessary for public purposes, apparently denying to the courts the right to inquire into this question. Section 13 of the Constitution of the state provides in part that: "Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him." And section 242 declares that: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured at the election of such corporation or individual before such injury or destruction." It is admitted that, the closing of a public street, alley, or highway is a taking of private property within the meaning of these constitutional provisions, and that compensation must be made to the abutting owners, and, further, conceded that the closing must be necessary for public purposes. Indeed, these two principles are too well settled to need more than the mere citation of the authorities that support them. Transylvania University v. City of Lexington, 3 B. Mon. 25, 38 Am. Dec. 173; Lexington & Ohio R. Co. v. Applegate, 8 Dana, 289, 33 Am. Dec. 497; Gargan v. Louisville, New Albany & Chicago R. Co., 89 Ky. 212, 12 S.W. 259, 6 L. R. A. 340; City of Louisville v. Bannon, 99 Ky. 74, 35 S.W. 120; Bannon v. Rohmeiser, 90 Ky. 48, 13 S.W. 444, 29 Am. St. Rep. 355; Cooley's Constitutional Limitations, p. 651. So that the question narrows down to the proposition: Is it essential to the validity of an act like the one under consideration that the courts should be given the right and discretion to pass upon the question whether or not the taking is for a public purpose when this issue is made, or can the General Assembly of the state by a legislative act deprive the courts of the power to inquire whether...