Murray v. Tucker

• Citation: 73 Ky. 240
• Parties: Murray, & c. v. Tucker, & c.
• Decision Date: 18 September 1874
• Court: Kentucky Court of Appeals

73 Ky. 240

Murray, & c. v. Tucker, & c.

Court of Appeals of Kentucky.

September 18, 1874

APPEAL FROM LOUISVILLE CHANCERY COURT.

WM. F BARRET, JOHN ROBERTS, ST. JOHN BOYLE, JOHN T. MILBURN, JAMES A. BEATTIE, For Appellants,

CITED

Charter of 1870 of the City of Louisville, sec. 12.

4 Bush 467,Hydes & Goose v. Joyes.

Act of June, 1865, 2 Session Acts 1865, p. 506.

RUSSELL & HELM, For Appellees,

CITED

8 Met. (Mass.) 194, City of Lowell v. Hadley.

1 Dillon's Municipal Corporations, 2d ed., pp. 478-83.

T. L BURNETT, For City of Louisville,

CITED

MS Opinion, Caldwell v. Obst. 9 B. Mon. 201.

8 Met. (Mass.) 194, City of Lowell v. Hadley.

6 Peters, White's lessees v. Cincinnati.

OPINION

PRYOR JUDGE:

The ordinance in this case provides for the improvement of an alley commencing at Wenzel Street, and running eastwardly to an alley running northwardly from Washington Street.

The contract made with the assignor of the appellee was in pursuance of this ordinance and for the improvement of this particular alley. The material inquiry in the case is, has this alley been improved so as to create a liability on the part of the owners of the property adjacent to pay for the work as provided by the city charter?

If the alley has been improved as specified and directed by the ordinance and accepted by the council, although the work may have been defectively executed, the council being the sole judge as to the manner of its execution and the character of the work, the appellants for that reason would be precluded from making any such defense in resisting the collection of the assessments made on their property.

It is maintained, however, in this case that the alley has not been improved, or rather that the engineer and contractor, instead of complying with the ordinance and the contract made with the city in pursuance therewith, undertook to construct a different alley by changing the location of the one ordered to be improved for the convenience of some of the property-owners on whose lots the alley bordered.

It is not pretended that the alley was improved as ordered; but, on the other hand, it is conceded that the alteration was made, and a part of the alley located and constructed upon different ground.

This alteration was not made by reason of any ordinance or the consent of the council obtained for that purpose, but at the instance of the engineer, the latter regarding the change as beneficial not only to the party owning the ground where the alteration was made, but to all interested in the improvement; the proof conducing to show also that no one was injured thereby.

About one fourth of this alley has been constructed on different ground; and, in the language of the witness, " the original alley extended about forty feet east of Wenzel Street before it made the turn, and the present alley extends about one hundred and six feet east of Wenzel Street before it makes the turn."

No dedication could have been made of the ground for a change in this alley prior to the passage of the ordinance, for the reason that Roberts, at whose instance and for whose benefit the change was made, was not until November 22, 1871, the owner of the property, nor did he sell to Pfau until July, 1872; the latter sale creating the necessity for the alteration in the location of the alley.

The legislature has prescribed the manner in which the city council may compel the citizen to contribute to the improvement of streets and alleys...