Lenox Land Co. v. City of Oakdale

• Decision Date: 10 March 1910
• Citation: 137 Ky. 484,125 S.W. 1089
• Parties: LENOX LAND CO. v. CITY OF OAKDALE. NEW LOUISVILLE JOCKEY CLUB v. SAME.
• Court: Kentucky Court of Appeals

125 S.W. 1089

137 Ky. 484

LENOX LAND CO. v. CITY OF OAKDALE.

NEW LOUISVILLE JOCKEY CLUB v. SAME.

Court of Appeals of Kentucky.

March 10, 1910

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

"To be officially reported."

Suit by the Lenox Land Company and by the New Louisville Jockey Club against the City of Oakdale. Judgment for defendant, and plaintiffs appeal. Affirmed.

Fred Forcht, Jr., D. W. Baird, Wm. H. Field, and Flexner &amp Campbell, for appellants.

Edwards Ogden & Peak and Wm. Mix, for appellee.

CARROLL J.

These two appeals involving the same questions will be disposed of together.

Oakdale is a city of the fifth class. Section 3611, Ky. St (Russell's St.§ 1630), a part of the charter of fifth-class cities, provides that: "Whenever it is deemed desirable to annex any territory to any city of this class, or to reduce the boundaries thereof, the city council thereof may enact an ordinance defining accurately the boundary of the territory proposed to be annexed or stricken off, and such ordinance shall thereupon be published in at least ten issues of the daily paper published in the city; or if there be no daily paper published in the city, then in at least four issues of a weekly paper published in the city; or if there be no daily or weekly paper published in the city then by posting copies of the ordinance for at least ten days in four of the most public places in the city. In not less than thirty days after the enactment of such ordinance, if the publication or notice, as herein provided has been made or given, and no petition is filed in the circuit court, as provided in the next section, the city council may, by ordinance, annex to the city the territory described in the ordinance hereinbefore mentioned, or reduce the limits, as the case may be; and upon the enactment of such ordinance, such territory shall become a part of such city, or shall be stricken therefrom." In section 3612, it is provided that: "Within thirty days after the enactment of an ordinance proposing to annex territory to any city, or to reduce the limits thereof, one or more residents or freeholders of the territory proposed to be annexed or stricken off may file a petition in the circuit court of the county, setting forth the reasons why such territory or any part thereof should not be annexed, or why the limits should not be reduced. The case shall be tried according to the rules and practice prescribed for the trial of equity causes, but without the intervention of a jury. If the court be satisfied upon the hearing, that less than seventy-five per cent. of the freeholders of the territory to be annexed or stricken off have remonstrated, and that the adding or striking off of such territory to the city will be for its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed or stricken off, it shall so find, and said annexation or reduction shall be approved and become final. If the court shall be satisfied that seventy-five per cent. or more of the resident freeholders of the territory sought to be annexed or stricken off have remonstrated, then such annexation or reduction shall not take place, unless the court shall find from the evidence that a failure to annex or strike off will materially retard the prosperity of such city and of the owners and inhabitants of the territory sought to be annexed or stricken off. In case the court shall so find, the annexation or reduction shall take place, notwithstanding the remonstrance. There shall be no appeal from the judgment of the court, and there shall be no change of venue from the county. Costs shall follow the judgment. If the judgment of the court be adverse to the annexation or reduction, no further effort to annex or strike off such territory shall be made within two years after the rendition of such judgment."

In 1908 the council of Oakdale, by appropriate ordinances following in all respects the provisions of the statute, annexed to the city adjacent territory owned by the New Louisville Jockey Club and the Lenox Land Company. In 1909, more than six months after the ordinance annexing the territory became effective, the appellants filed their respective petitions setting out the annexation of the territory in pursuance of the ordinances, and alleging that, as there was neither a daily nor weekly paper published in the city of Oakdale, the ordinances were posted in public places, as required by the statute, but that neither of the plaintiffs had any notice that the city proposed to enact the ordinances, or either of them, and consequently had no opportunity to file in the circuit court, within 30 days after the ordinance proposing the annexation was passed, a petition setting forth the reasons why such territory should not be annexed. They further averred that neither of them resided in the city of Oakdale, nor did either of them have any occasion to go there during the time the ordinances were posted; that if they...