Middlesborough Town & Land Co. v. Knoll

• Decision Date: 24 February 1900
• Citation: 55 S.W. 205
• Parties: MIDDLESBOROUGH TOWN & LAND CO. v. KNOLL et al. [1]
• Court: Kentucky Court of Appeals

55 S.W. 205

MIDDLESBOROUGH TOWN & LAND CO. v. KNOLL et al. ^[1]

Court of Appeals of Kentucky.

February 24, 1900

Appeal from circuit court, Bell county.

"Not to be officially reported."

Action by Knoll & McCray against the Middlesborough Town & Land Company to enforce a lien upon city lots for the cost of a street improvement. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sampson & Chapman, for appellant.

N. J Weller, for appellees.

BURNAM J.

This is an appeal from a judgment enforcing a lien upon certain lots of appellant to secure the payment of apportionment warrants issued by the city of Middlesborough for the construction of sidewalks upon Cumberland avenue. A reversal is asked on the grounds--First, that the pleadings in the proceeding do not authorize the judgment; second, that there was no acceptance of the work by the city engineer or council; and, third, that the work was not done according to contract.

As to the first ground of objection, the petition recites in detail the provisions of the charter, the ordinance of the city council directing the improvement, the advertisement for bidders, the award to appellee, the execution of the contract by the council, the performance of the work by appellee without objection, the acceptance of it by the city engineer the approval of such acceptance by the council, and the issuing of the warrants sued on, and we are of the opinion that the pleading contains all necessary averments.

It is the contention of counsel that the acceptance of this work was illegal, because the sidewalks in front of lots 4, 5, 6 and 7, in block 11, S. E., had not been begun or completed at that time. The evidence in the record shows that the council consented that the owners of these lots could put down their own pavement, and that the sidewalk in front of them was not included in the contract made with appellee.

And the objection that the work was not done according to contract is based upon the contention that the ordinance, as passed and published, designated a pavement of concrete 20 feet wide. It appears that the concrete part of this sidewalk is 19 feet and 7 inches wide, and that there is a stone curbing 5 inches wide, which makes the 20 feet provided for. As appellant was only required by the judgment to pay for the concrete part by the square foot, it is not prejudiced by this slight discrepancy. Appellee had nothing to do with the...