L. & N.R.R. Co. v. City of Frankfort
| Decision Date | 16 June 1931 |
| Citation | 239 Ky. 670 |
| Parties | Louisville & Nashville Railroad Company v. City of Frankfort et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Municipal Corporations. — Assessing and levying cost of paying for street improvement must be done under statutory provision.
2. Municipal Corporations. — Right to declare and enforce liens on property for street improvement is purely statutory.
3. Municipal Corporations. — Authority for lien for street improvement, and property against which it may be assessed and enforced, must be found in express language of statute.
4. Municipal Corporations. — Court cannot extend statute authorizing lien for street improvement and enforcement thereof beyond its own language (Ky. Stats., sec. 3450).
5. Municipal Corporations. — City of third class held without statutory authority to assess and collect apportioned cost of street improvement against property of steam railroad company having elevated tracks in center of street (Ky. Stats., sec. 768, subsec. 5; sec. 3450).
Ky. Stats., sec. 3450, by expressly designating, as property liable for street imporvement, lots or parcels of real estate abutting on such improvement, a street railway, property belonging to city, and abutting property owned by county, without expressly including tracks of steam railroads manifested an intention on part of General Assembly to exclude the tracks of steam railroads occupying center of street.
Appeal from Franklin Circuit Court.
ASHBY M. WARREN, C.S. LANDRUM, and MORRIS & JONES for appellant.
F.M. DAILEY for appellees.
On May 12, 1930, the council of the city of Frankfort by ordinance, adopted in prusuance to this provision of the statute, provided for the paving with asphalt of Broadway street from Washington street to the old Louisville & Nashville Railroad bridge over the Kentucky river. The track of appellant occupies the center of Broadway a distance of about two city blocks from a point at the intersection of Broadway and Washington streets to the Kentucky river. A fill was constructed of cement for the purpose of accommodating the proper construction of its track, which is about 14 feet wide and begins with the level of the street at the intersection of Washington and Broadway, rising gradually until the elevation is about 12 1/2 feet in height at the intersection of Wilkinson and Broadway, and from Wilkinson and Broadway it is from 12 1/2 feet to about 19 feet in height where it approaches the Kentucky river. There an abutment was built for the purpose of accommodating the bridge that spans the river. The track is constructed on this fill. The construction of the fill and the tracks on it are permanent. The street in the center of which it exists has an average width from curb to curb of 69 feet. The general average of the width of the street on the south side of the fill from curb to it, is 31 feet; on the north side it is 24 feet.
During the year 1930, the city council of Frankfort by ordinance which is conceded to comply in all respects with the provisions of section 3450 supra, and to have been duly and regularly adopted, undertook to improve Broadway street by a reconstruction thereof of a permanent type of street as set out in the ordinance, on both sides of the fill beginning on Broadway from the west side of Washington, running to Wilkinson, and from Wilkinson to the river. At the intersection of Broadway and Wilkinson, the appellant has constructed a trestle for the use of traffic on the street at the intersection of Broadway and Wilkinson. The city of Frankfort constructed this intersection. On November 10, 1930, the common council of the city by ordinance assessed and apportioned against appellant a part of the cost of the street construction from Washington street to the Kentucky river bridge. The appellant protested in writing against its action. The council disregarded its protest, and by ordinance assessed and apportioned against it a portion of cost of improvement of Broadway street from Washington to the old Louisville & Nashville bridge as follows:
Broadway street, South side, from Washington
street to Wilkinson street __________________ 416.5 ft. $780.94
Broadway street, North side, from Washington
St. to Wilkinson Street _____________________ 416.6 ft. 781.12
Broadway street, North side from Wilkinson St
to old L. & N.R.R. Bride ____________________ 352.0 ft. 704.00
Broadway street, South side, from Wilkinson St
to the Old L. & N.R.R. Bridge _______________ 196.0 ft. 393.20
____________________
Total assessed cost against Plaintiff __________ $2,659.26
Subsequently by ordinance the city council levied a tax on the value of the track of appellant in the center of Broadway and declared a lien thereon to secure the payment of $2,659.26. Thereafter appellant instituted this action in the Franklin circuit court challenging the authority of the city council in all respects in the adoption of the ordinance and the apportioning of the cost of the street construction and in the assessing, levying, and declaring a lien against its track situated in the center of the street. It sought to have same canceled and held for naught, and to obtain an injunction perpetually enjoining the city council and authorities from enforcing a lien against it and its property. After certain amendments were filed, the trial court sustained a demurrer to the petition as amended. The appellant declined to plead further, and elected to stand by its petition as amended. Whereupon judgment was entered dismissing its petition, to which it excepted and now prosecutes this appeal.
In 1832 the Lexington & Ohio Railroad Company was granted, by an act of the General Assembly of Kentucky, a franchise to lay its track and operate its trains on Broadway street. Later, the Louisville & Nashville Railroad company acquired the franchise rights of the Lexington & Ohio Railroad Company. The appellant therefore acquired its authority as successor of the Lexington & Ohio Railroad Company to exercise its rights to maintain its track and operate its trains over Broadway street.
It has maintained its track and operated its trains on Broadway street of the city of Frankfort with the consent of the city authorities of Frankfort for about three-quarters of a century. Sometime in the year 1928 a change in the location of its track on Broadway between Washington street and the old Louisville & Nashville bridge was made under an agreement between it and the city of Frankfort, by which it was granted permission to construct a railroad bridge over the Kentucky river within the limits of the city of Frankfort, and was granted by the city the right to change the direction of its use and occupancy of Broadway street from where its track was then located. The fill now existing in the street, and on which the track is located and upon which its trains are operated, was made in pursuance to this arrangement between it and the city of Frankfort. The appellees insist that the appellant's franchise is a perpetual one and that its occupancy of the street is absolute for its own use and for no other purpose, and that the strip of land on which its tracks are located "is assessable for the purpose of street improvements" under section 3450 supra, and the ordinance adopted by the city council in pursuance thereto. To sustain their position they cite and rely upon Figg v. Louisville & N.R.R. Co., 116 Ky. 135, 75 S.W. 269, 25 Ky. Law Rep. 350; Louisville & N.R.R. Co. v. Barber Asphalt Paving Co., 116 Ky. 856, 76 S.W. 1097, 25 Ky. Law Rep. 1024; Louisville & N. Railroad Co. v. Southern Roads Co., 217 Ky. 575, 290 S.W. 320; Chesapeake & O.R.R. Co. v. City of Morehead, 223 Ky. 698, 4 S.W. (2d) 726; Vogt v. City of Oakdale, 166 Ky. 810, 179 S.W. 1037; City of Maysville v. Maysville St. Ry. & Transfer Co., 128 Ky. 673, 108 S.W. 960, 963, 32 Ky. Law Rep. 1366. To sustain the same rule may be cited Specht v. Barber Asphalt Paving Co., 80 S.W. 1106; Orth v. B.B. Park & Co., 117 Ky. 779, 79 S.W. 206, 80 S.W. 1108, 81 S.W. 251, 25 Ky. Law Rep. 1910, 26 Ky. Law Rep. 184, 342.
The rule deducible from the cases supra is that a strip of land appropriated to use by a railroad company as a right of way is a lot within the meaning of section 3450 supra, and is liable to assessment for street improvement, except the case of City of Maysville v. Maysville Street Ry. & Transfer Co. In those cases, with the exception noted, the lots or parcels of real estate were abutting the improvement. In the City of Maysville case the rule announced in the other cases cited by appellee was recognized by the court in this language: ...
To continue reading
Request your trial