Louisville & N.R. Co. v. Garrard

• Decision Date: 19 June 1934
• Citation: Louisville & N.R. Co. v. Garrard, 72 S.W.2d 1024, 255 Ky. 127 (Ky. Ct. App. 1934)
• Parties: LOUISVILLE & NASHVILLE RAILROAD CO. v. GARRARD et al.
• Court: Kentucky Court of Appeals

72 S.W.2d 1024

255 Ky. 127

LOUISVILLE & NASHVILLE RAILROAD CO. v. GARRARD et al.

Court of Appeals of Kentucky

June 19, 1934

Appeal from Circuit Court, Knox County.

Action by E. G. Garrard and another against the Louisville &amp Nashville Railroad Company and another, wherein named defendant counterclaimed. Judgment for plaintiffs against named defendant, and named defendant appeals.

Reversed.

Ashby M. Warren, of Louisville, and Black, Black & Owens, of Barbourville, for appellant.

J. J Tye, of Barbourville, for appellees.

RICHARDSON Justice.

E. G Garrard and Nellie McDowell Garrard brought this suit in the Knox circuit court against the Louisville & Nashville Railroad Company and the city of Barbourville to recover $108.59, the balance claimed to be due them under a contract between them and the city for the cost of construction of a portion of Knox street in the city of Barbourville within the railroad company's right of way. The contract was executed and delivered in accordance with an ordinance of the city providing for the paving of Knox street for a width of 20 feet, beginning at Allison avenue and ending at the Dixie highway, excepting that portion of the street within the railroad company's right of way, which was paved 30 feet. The railroad company counterclaimed and sought to recover against the Garrards $126.94 on account of overpayment for that portion of the cost of the construction of Knox street, not including 10 feet of the 30 feet constructed within its right of way. Judgment was rendered in the Garrards' favor for $108.59, and the counterclaim of the railroad company was dismissed.

A personal judgment was rendered against the railroad company. This was an error. Moss v. Andrews Asphalt Paving Co., 229 Ky. 419, 17 S.W.2d 255; C. & O. R. R. Co. v. City of Olive Hill, 231 Ky. 65, 21 S.W.2d 127; Jenkins v. City of Bowling Green, 251 Ky. 119, 64 S.W.2d 457.

The $108.59 was assessed against the railroad company as the cost of constructing within its right of way 10 of the 30 feet. The cost of improving Knox street excluding this extra 10 feet was apportioned by a proper ordinance of the city among the abutting property owners; the amount so apportioned to the railroad company as the cost of 20 feet within its right of way was $699.81, which it paid to the Garrards and declined to pay the $108.59, the cost of the extra 10 feet of the entire width of the paved portion of the street within its right of way.

The ordinance providing for the paving of the street did not specify the width of the improvement; but the plans and specifications of the improvement, it is claimed, showed the width the street was to be constructed. The ordinance provides: "Said street shall be paved and said curb and gutter constructed with the plans and specifications therefor on file in the office of the mayor of said city which plans and specifications are here referred to, adopted and made part of this ordinance by annexation hereto." The plans and specifications referred to in this provision of the ordinance are not a part of the record. The railroad company insists they do not show that the extra 10 feet within its right of way was to be constructed. With the plans and specifications absent, we are unable to determine the correctness or incorrectness of its contention in this respect. In their absence it is our duty to assume that if present they would support the judgment of the chancellor. It is an established rule of practice where all of the evidence is not brought here, every fact necessary to support the judgment must be assumed to have been in favor of the party for whom judgment was rendered. Sections 335-337, Civ. Code Prac.; Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014; Patterson v. Miracle, 253 Ky. 347, 69 S.W.2d 708. Applying this rule, it cannot be said the finding of the chancellor, that the plans and specifications which were made a part of the ordinance authorizing the improvement, do not embrace the extra 10 feet of the construction within the right of way of the railroad company.

The railroad company complains because the cost of constructing the extra 10 feet within its right of way was apportioned entirely against it. It insists the entire cost of paving Knox street, including that portion within its right of way, was chargeable against all of the abutting property owners according to the number of feet they owned, and it was an error on the part of the council to apportion against it the entire cost of the extra 10 feet in width of the construction within its right of way. In this insistence, we concur.

It is an accepted rule that where an improvement of a street is made at the cost of the lot owners the expense must be apportioned...