Joyes v. Shadburn

• Decision Date: 08 April 1890
• Citation: 13 S.W. 361
• Parties: JOYES et al. v. SHADBURN et al.
• Court: Kentucky Court of Appeals

13 S.W. 361

JOYES et al. v. SHADBURN et al.

Court of Appeals of Kentucky.

April 8, 1890

Appeal from Louisville law and equity court.

"Not to be officially reported."

Action by William Shadburn and others to subject the property of Patrick Joyes and others to the payment of the cost of improving an alley in the city of Louisville. There was judgment for Plaintiffs, and defendants appealed.

P Joyes, for appellants.

Lane &amp Burnett, for appellees.

PRYOR J.

The property of the appellants in this case is sought to be subjected to the payment of the cost for improving an alley in the city of Louisville. The charter of the city of March 24, 1882, provides (section 2) that, when the improvement is the original construction of any street, alley, or avenue such improvement shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned by the general council according to the number of square feet owned by them, etc. Section 3 provides that "the cost of making sidewalks, including curbing, whether by original construction or reconstruction, shall be apportioned to the front foot as owned by the parties, respectively, fronting said improvement." The appellants' property was made liable for the cost, including the curbing, as provided in section 2, when it is plain that section 3 exempted any part of it from payment for curbing except the front feet bordering on the alley. The cost of the curbing is confined to the front foot bordering on the alley, and is so plain as to be unmistakable. No other construction can be given it, and there is no escape from the conclusion that such was the legislative intent. It is immaterial what has been the custom or practice heretofore. There is no reason for any other construction.

It seems to us, also, that the question as to the right of the city to improve this alley was put in issue. If only a private way, for private use, attached or appurtenant to the property owned, with no title vested in the city by dedication or otherwise, the right to order the improvement did not belong to the city, and, besides, it was the duty of the council to fix the grade, and to specify the improvements to be made; and, for that reason, the answer, alleging that such steps were not taken, presented a defense to the action. We perceive no other valid defense interposed.

As to whether or not the work was done according to contract, the...