Hicks v. City of Ashland
| Decision Date | 17 January 1933 |
| Citation | 71 S.W.2d 988,254 Ky. 397 |
| Parties | HICKS et ux. v. CITY OF ASHLAND et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied March 14, 1933.
Appeal from Circuit Court, Boyd County.
Action by the City of Ashland and others against Taylor Hicks and wife, in which defendants set up a counterclaim. From the decree denying defendants relief, they appeal.
Reversed with directions.
Sam Sparks and Adamson & Sparks, all of Ashland, for appellants.
John T Diederich, Hager, Prichard & Malin and Wilson & Robinson, all of Ashland, for appellees.
Ashland Ky. is a city of the second class. Its general council by ordinance provided and entered into a contract with Hunt-Forbes Construction Company for the construction of a portion of Thirteenth street abutting the property of Taylor Hicks and Sarah Hicks. After the street was constructed, the general council by an ordinance apportioned the cost at $7.43 plus per foot, or $944.70 for one of their lots and $598.06 for another. The validity of the ordinance, the manner of making of the contract for the improvement, and the proceedings of the general council concerning the street improvement, are not questioned. When making the apportionment and arriving at the cost per foot, the city included the cost of constructing a retaining wall, $2,950.10 for services of an engineer on the entire project, $1,847 for inspection of the work, $325 for abstracting, and the cost of constructing and repairing 1,000 feet of sewer. The amounts included for the costs of the abstracting, inspection, and engineering are not disputed. The aggregate amount of the cost of the sewer is disputed.
This action was instituted by the city and the contractors to enforce the statutory lien which exists in such cases to secure the costs apportioned to the property of Hicks and wife. In addition to seeking to surcharge the apportionment of the costs of the retaining wall and the other four items, Hicks and wife set up a counterclaim for the taking of a portion of their lots for the construction of the street. A decree was entered denying them relief. They appeal.
Their argument that the widening of Thirteenth street was not an original construction was answered by this court in Huddleston et al. v. City of Ashland, 217 Ky. 452, 289 S.W. 1091. No authority or reason is presented for the distinguishing of the widening of Thirteenth street under the ordinance in the present case from that in Huddleston et al. v. City of Ashland. Before Thirteenth street was improved under the ordinance herein, it was a portion of the state highway. It had not been previously constructed or reconstructed by the city. Until it is constructed as prescribed by the city ordinances, no construction thereof is in any sense an "original construction" at the cost of abutting property owners. Sparks v. Barber Asphalt Paving Co., 129 Ky. 769, 112 S.W. 830, 22 L. R. A. (N. S.) 877, 130 Am. St. Rep. 492; McHenry v. Selvage, 99 Ky. 232, 35 S.W. 645, 18 Ky. Law Rep. 473; Wymond v. Barber Asphalt Paving Co., 77 S.W. 203, 25 Ky. Law Rep. 1135; Guilfoyle's Ex'r v. City of Maysville, 129 Ky. 532, 112 S.W. 666; Marret v. Jefferson County Construction Co., 161 Ky. 845, 171 S.W. 396; Carran v. City of Ludlow, 174 Ky. 529, 192 S.W. 526. The general rule in such cases is "a street, without regard to its previous condition, may be originally improved once at the expense of the abutting ADproperty] owner, and where the property of the abutting owner has never been assessed for street construction, and the work so far as the owner is concerned is original construction, the city has the right to charge them with the expense of it." Kimbley v. Hickman, 163 Ky. 713, 174 S.W. 484; Marret v. Jefferson County Construction Co., supra; City of Catlettsburg v. Self, 115 Ky. 669, 74 S.W. 1064, 25 Ky. Law Rep. 161; Southern Bitulithic Co. v. Sweeney, 195 Ky. 577, 242 S.W. 846. As to the determination of the necessity of widening the street and of the construction of the retaining wall, the general council of the city was the final judge, in the absence of both allegation and clear and convincing proof of either fraud or bad faith amounting to actual fraud. Mudge v. Walker, 122 Ky. 29, 90 S.W. 1046, 28 Ky. Law Rep. 996; Katterjohn v. King, 202 Ky. 69, 258 S.W. 960. The retaining wall was called for in the plans and specifications of the improvement. Without it, it was impossible to execute the plans and make the improvement. It was constructed for the benefit of the street and the property owners, and is necessary to protect and preserve the street. It is an indispensible part of the street. It is not an independent improvement in any sense. The cost thereof is properly chargeable to the abutting property owners, even though the ordinance ordering the improvement did not in terms provide for it. Wendt v. Tucker, 185 Ky. 626, 216 S.W. 61; City of Hazard v. Adams, 229 Ky. 598, 17 S.W.2d 703; City of Covington v. Sullivan, 172 Ky. 534, 189 S.W. 709; Janutola & Comadori Construction Co. v. Taulbee, 211 Ky. 356, 277 S.W. 477; Board of Councilmen v. Jillson, 225 Ky. 61, 7 S.W.2d 859; Downing v. Town of Chinnville, 237 Ky. 121, 34 S.W.2d 961.
Respecting the cost of the sewer that was included in the apportionment of the cost of the improvement, section 3105, Ky. Statutes authorizes a city of the second class to construct sewers in, on, along, or under the streets, alleys, or highways of the city, and to assess the entire cost thereof, including intersections, upon lots and lands in the neighborhood of the sewers, which may be benefited thereby, according to the benefits received, and to levy a special local tax on such lots and lands for the cost of such improvement so assessed thereon. The general council is expressly required to fix and determine by an ordinance what lots and lands are benefited thereby, and in like manner to fix and determine the amount of tax to be levied upon the several lots or lands so benefited, which cost must not exceed $2 per foot, against the property bounding or abutting upon the streets, alleys, or highways, in, under, or along, which such sewers may be constructed. Such abutting or bounding property shall be deemed the property benefited thereby and the cost apportioned or assessed equally on such abutting lots or lands according to the footage. This section sets out in detail how such ordinance shall be passed and the sewer tax shall be collected. Rich v. Woods, 118 Ky. 865, 82 S.W. 578, 26 Ky. Law Rep. 799; City of Covington v. Noland & Co., 89 S.W. 216, 28 Ky. Law Rep. 314. That this provision in the statute is a material as well as an important one cannot seriously be questioned, and, to carry out what we conceive to be the purpose of the law, we think this feature of the statute should be treated as mandatory. Mulligan v. McGregor, 165 Ky. 222, 176 S.W. 1129. The purpose of its requirement was to give notice to the property owners of the contemplated improvement and that their property would be subject to assessment for the payment of the...
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