Keasy v. City of Louisville

• Decision Date: 09 June 1836
• Citation: 34 Ky. 154
• Parties: Keasy v. The City of Louisville.
• Court: Kentucky Court of Appeals

34 Ky. 154

Keasy v. The City of Louisville.

Court of Appeals of Kentucky.

June 9, 1836

FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.

Mr Nicholas for plaintiff.

Mr Guthrie for defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

Daniel Keasy, owning a lot on Jefferson street, in Louisville, on which he had erected a small wooden house, since that street had been graded and paved, under the charter of incorporation of 1828--sued the city, in an action on the case, for elevating the grade about three feet above the level of his lot, after he had thus improved it, correspondingly with the first grade, in consequence of which he had, as he avers, to fill up his lot and reconstruct his house, and had been, in other respects, subjected to inconvenience and damage.

The power of the Legislature to incorporate a city (Louisville) is not questioned; nor is it doubted that the municipal government has authority, as an incidental corporate right to grade and pave the streets, and to alter and change the grades, at any time and in any way that the public convenience may require; and of that the city authorities are the judges; and their decisions-- made with a due regard to paramount laws and private rights--are final and conclusive.

Private property cannot be taken for public use without the owner's consent, or a just compensation made to him; but public improvements may be made, in consequence of which, an individual may sustain much injury, and yet, unless his property, real or personal, or the use of it, or some prescriptive right, franchise or privilege, is taken from him, or directly interfered with, he has no claim to indemnity; e. g. in this case, a street was graded, and lot upon it was brought to a corresponding height and built upon; then the street, by city authority, was further elevated, forming a bank in front of the house so high that the owner was compelled to rebuild & c. yet as neither his premises nor any privilege or appurtenance thereof was touched--he had no right to compensation from the city.

The facts, as alleged, having been proved on the trial, on the general issue, the court instructed the jury that, if they should believe, " from all the evidence, that the Mayor and councilmen of the city of Louisville had the street filled or raised for the purpose of carrying off the water in that part of the city, and the injury complained of arose from filling or raising, they ought to find for the defendant."

Verdict and judgment were accordingly rendered in bar of the action. And it is that judgment which the plaintiff in error now seeks to reverse.

The constitutional power to incorporate the citizens of Louisville into a municipal body politic, possessing, as every artificial as well as natural being ought to possess, a self-will and the faculty of acting, or regulating its own affairs, and of governing its constituent members, as far as may be consistent with its charter, the federal and state constitutions and the general laws of the Commonwealth, and as may be proper for effectuating the legitimate ends of its creation, has been conceded by the plaintiff in error, in the fact of suing the corporation, and has, also, been necessarily presupposed by the Circuit Judge, in giving his hypothetical instruction to find for the City as defendant. And, not doubting either the power of incorporating the city or the incidental corporate right, either inherent, or derived from legislative authorization, to...