Mulligan v. McGregor

Citation176 S.W. 1129,165 Ky. 222
PartiesMULLIGAN ET AL. v. MCGREGOR ET AL. [a1] PATTERSON ET AL. v. MCGREGOR ET AL.
Decision Date03 June 1915
CourtCourt of Appeals of Kentucky

Appeals from Circuit Court, Fayette County.

Actions between A. G. McGregor and J. H. Mulligan and C. B. Patterson and others. Judgments for McGregor and others and Mulligan and Patterson and others appeal. Reversed, with directions to dismiss the petitions.

Falconer & Falconer and James H. Mulligan, all of Lexington, for appellants Mulligan and others.

George B. Kinkead, of Lexington, for appellant Patterson.

Forman & Forman, of Lexington, for appellees.

CARROLL J.

These two cases, which were heard together in the lower court and will be so disposed of here, involve the validity of assessments for the construction of a sewer on Adams street and College place in the city of Lexington. On Winslow street there is a large or main sewer. Adams street lies parallel with and about 200 feet north of Winslow street, and is connected with Winslow street by the short street known as College place. Lexington avenue runs at right angles with Adams street and intersects it. In May 1910, the city council of Lexington adopted a joint resolution declaring in its title--

"the construction of a sanitary sewer on each side of the following streets and avenues to be a necessity: * * * On Lexington avenue from a point near Maxwell street to connect with the Southern main sewer."

In the body of the resolution it was also recited that:

"The construction of a sanitary sewer * * * on Lexington avenue from a point near Maxwell street to connect with the Southern main sewer is hereby declared to be a necessity."

It was further set forth that the cost of the construction should be assessed against and borne by the owners of the property abutting on both sides of the respective streets and avenues on which the said sewer was to be constructed--

"said property being hereby declared to be the property benefited by said improvements and liable for the cost thereof."

In June following the city council adopted an ordinance--

"for the construction of public sanitary sewers on * * * Lexington avenue, Adams street, and College place, * * * at the cost of the abutting property owners."

This ordinance set forth that the general council had theretofore passed a joint resolution declaring the sanitary sewers therein ordered to be constructed a public necessity, and also that the cost would be less than one dollar per foot of the abutting property. It was therefore ordained that, in accordance with plans and specifications, the sewer should be constructed--

"on Lexington avenue from a point 200 feet south of Maxwell street to Adams street; thence west along Adams street to College place; thence south on College place to the Southern main sewer, with five manholes and one flush tank."

Pursuant to this ordinance the sewer described was constructed at a cost of less than $1 per foot. After the sewer was constructed, it was approved and accepted by the city, and the cost, amounting to 60 cents per abutting foot, was assessed against the property, and upon the failure of the appellants who own the property abutting on Adams street and College place to pay the same, this suit was brought by the city and the contractor, asserting a lien on the property for the benefit of the contractor for the cost of the improvement. After the pleadings had been made up and evidence taken, the cases were submitted to the lower court and there was a judgment against the appellants Mulligan and Patterson for the amount assessed against their property.

On this appeal from the judgment rendered, several grounds are assigned for reversal. One is that neither Adams street nor College place are streets of the city, as neither had been dedicated to the city as a street or public way or accepted by the city as such. The evidence shows that these streets or public places are in sparsely settled and outlying territory of the city of Lexington, and that they were opened for public use in connection with a sale of lots some 20 years or more ago; that from the time they were so opened, they have been used by the public generally without let or hindrance as public ways or streets, although they have remained altogether unimproved; that the city never attempted to exercise any control over them by the construction of carriageways or sidewalks, or in any other manner, nor were they improved by the property owners. They simply remained in the unimproved condition they were when first opened to the public. It does appear, however, that some mention of these streets was made in an old map of the city, but this circumstance, in the way it comes into the record, is not very important. The evidence also showed that there had never been any formal dedication to the city or acceptance of these streets by the city, although they were dedicated to the use of the public at the time the lots were sold, and the streets opened primarily, as we may assume, to furnish access to the lots.

In 1910 the Legislature passed an act entitled--

"An act to amend and re-enact sections 3094, 3096, 3097, 3098, 3099, 3100, 3101 and 3102, of the Kentucky Statutes, relating to the control and improvement of streets, public ways, landings, wharves, grounds and sidewalks in cities of the second class." Laws 1910, c. 107.

This act now appears in the Kentucky Statutes as sections 3094, 3102. At the same session of the Legislature there was passed an act relating to public improvements in cities of the second class, and amending section 3105 of the Kentucky Statutes, and this act now appears as section 3105. For convenience the sections of the Kentucky Statutes will be referred to in place of the acts. And it may be here said that although the sufficiency of the title of these acts is drawn in question, we do not think this contention well taken. The title of the acts are broad enough to cover the subject-matter contained in the acts and sufficiently comply with section 51 of the Constitution.

It is provided in section 3094 that:

"When any parcel of ground shall have heretofore been, or shall hereafter be, laid off as a street, avenue or alley, and opened to the unrestricted use of the general public for five consecutive years, it shall be conclusively presumed to have been dedicated to the city as a public street, avenue or alley of the city, subject, however, to acceptance by the city, and the city may, at any time after the expiration of five years from the time such parcel of ground is laid off and opened to the public, pass an ordinance declaring such parcel of ground to have been so dedicated, and accepting the dedication thereof; whereupon it shall become and be a public street, avenue or alley of the city for all purposes, and the lack of an actual dedication thereof to the city, or of a record title thereto on the part of the city, shall be no defense against the collection of any tax which may be assessed and levied against property abutting thereon for the payment of the cost of any improvement constructed thereon by order of the city." Under this statute Adams street and College place may be treated as having been dedicated as public ways or streets. Indeed, in the absence of the statute, they should be so treated, because they were in fact dedicated many years before 1910 to the use of the public, and this use on the part of the general public had been unrestricted since they were first set apart for public use.

Whether they have ever been accepted by the city in such a manner as to make them public ways or streets of the city is another question. The dedication of a street or public place to public use and its use by the general public does not make it a part of the public ways of the city until it has been accepted by the city. Under the common law as well as the statute, acceptance is necessary to convert the dedicated territory into a public way or street of the city. The mere act of dedication, or the use of the dedicated territory by the general public, however long it may have continued, does not put upon the city the duty of acceptance, nor can the city be charged with the care of a public place merely by the dedication of it to a public use. Whether the city will assume the burden that follows acceptance rests with it. Acceptance, however, in the absence of a statute defining what constitutes it, or how it may be effected, may usually be manifested in other ways than by formal action taken by the city council through the passage of an ordinance or resolution of acceptance.

The rule generally prevailing as announced by the different courts is that unless the method of acceptance is prescribed by a statute to the exclusion of other methods, it may be shown by the acts or conduct of the city in respect to the property dedicated. For example, if the city undertakes the improvement of a dedicated street or way, or exercises in any manner such right of control or regulation over it as it exercises over other recognized streets or public ways, this improvement or regulation and control will be treated as an acceptance of it by the city, and the city will have the privileges, as well as the burdens, that follow the regulation and control of its streets and public ways. Or, as said in Dillon on Municipal Corporations (5th Ed.) vol. 3,§ 1087:

"The methods in which the municipality may accept lands dedicated to public use, and become liable for the maintenance of streets, ways, and other public places, are of great variety, and may be said to include every act done by the municipality through its proper officers in the exercise of its jurisdiction and control of public streets and highways. When property is dedicated to public use for
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    ... ... Burroughs v. Cherokee, 134 Iowa 429, 109 N.W. 876 (1906) (ordinance establishing a system of sewers in dedicated streets); Mulligan v. McGregor, 165 Ky. 222, 176 S.W. 1129 (1915) (ordinance describing the land and directing the construction of sewers therein); In re Hunter, 163 ... ...
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