James v. City of Louisville

• Decision Date: 19 May 1897
• Citation: 40 S.W. 912
• Parties: JAMES v. CITY OF LOUISVILLE. CITY OF LOUISVILLE v. SHANKS. JACKSON LOAN & INVESTMENT CO. v. JAMES.
• Court: Kentucky Court of Appeals

40 S.W. 912

JAMES v. CITY OF LOUISVILLE.

CITY OF LOUISVILLE v. SHANKS.

JACKSON LOAN & INVESTMENT CO. v. JAMES.

Court of Appeals of Kentucky.

May 19, 1897

Appeals from chancery court, Jefferson county.

"Not to be officially reported."

Suits by Thomas James against the city of Louisville, and by William T. Shanks and others against Thomas James and the city of Louisville. Judgment for defendant in former suit and plaintiff appeals. Judgment in latter suit for plaintiffs against the city of Louisville, and for Thomas James against plaintiffs. Appeals by the city of Louisville and by the Jackson Loan & Investment Company. Affirmed.

HAZELRIGG J.

In the case first named, the city of Louisville under an ordinance was about to improve what was known as "Payne Street," on the eastern extremity of the city, when the appellant James brought suit to have the strip of ground involved adjudged to be his, and not a public way or street. The question is largely one of fact. The chancellor held that the strip was part of a public street, which had not been lost by the alleged adverse user of the appellee or his vendors, or by any former adjudication. In this we concur. The proof conduces to show that the owners of the ground in about 1853 or 1854, regarded the strip as a public street, and in fact laid out and sold lots calling for this way as "Payne Street." This was a parol dedication, and is valid. There is some evidence to the effect that, later on, the ground was used or occupied by private individuals; but these had ample notice of the rights of the public, and gave no notice to the city authorities that their occupancy or user was adverse to the right of the public. Gen. St. c. 71, art 5; Bosworth v. City of Mt. Sterling (Ky.) 13 S.W 920. The contention of appellant that the rights of the public were affected by the action of the mayor and council and the suit of the city against the warehouse company cannot be sustained. As said by the chancellor: "The city did not have the power to lessen the rights of abutting property owners to the use of the street without their being made parties. They had a special interest in the street, as well as a general interest along with the rest of the public,"-citing Gargan v. Railway Co. (Ky.) 12 S.W. 259; Bannon v. Rohmeiser (Ky.) 13 S.W. 444.

It appears that the city proceeded to improve the street in contest, and the contractor, Shanks, after completing the...