Proctor v. Avondale Heights Co.

• Decision Date: 12 October 1923
• Citation: 200 Ky. 447,255 S.W. 81
• Parties: PROCTOR ET AL. v. AVONDALE HEIGHTS CO.
• Court: Kentucky Court of Appeals

255 S.W. 81

200 Ky. 447

PROCTOR ET AL. v. AVONDALE HEIGHTS CO.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, McCracken County.

Action by the Avondale Heights Company against E. T. Proctor and others. Judgment for plaintiff, and defendants appeal, and plaintiff files cross-appeal. Reversed in part and affirmed in part.

Bradshaw & MacDonald, of Paducah, for appellants.

Wheeler & Hughes, of Paducah, for appellee.

TURNER C.

This is an action by appellee, plaintiff below, under the provisions of the Declaratory Judgments Act (Laws 1922, c. 83), and was instituted, prosecuted and a judgment entered therein under the circumstances and conditions shown hereafter.

In 1908, or prior thereto, the Gregory Heights Company was organized for the purpose of subdividing into lots a tract of land adjacent to or in the suburbs of the city of Paducah and selling lots therein. That company had recorded in the county clerk's office a plat of this proposed subdivision showing how the same was subdivided into lots, streets, and alleys. On that plat there were three tracts not subdivided one of these tracts was marked on the plat "Heights Park," and was situated near the center of the tract and there were two other tracts not subdivided as shown thereon, one on the southwestern part of the tract and another on the far end of the tract, and they were each marked thereon "Reserve."

After the sale by the Gregory Heights Company of some of the lots and in 1913, the appellee, Avondale Heights Company, became the owner of the remainder of the subdivision. Shortly thereafter, and on the 12th day of June, 1913, appellee entered into a written contract with the Paducah Water Company with a view to furnishing the residents of the new subdivision with water, and as a part of that contract agreed within ten years thereafter to make the water company a deed to a lot fronting 50 feet on Thirty-Fifth street and 165 feet on Thirty-Fourth street; said lot being the corner of one of the undivided spaces marked "Reserve" as shown on the map, and that "Reserve" plot being the one so marked at the eastern end of the tract, and at a point where Thirty-Fourth street and Thirty-Fifth street, by reason of a curve in each, converge. This contract was recorded in the county court clerk's office before any of the defendants to this action, or any of the plaintiffs in the injunction suit hereafter referred to, acquired title to their respective lots in the subdivision.

The pleadings in this action show that the defendants herein (except the water company) together with certain other parties not named, had, prior to the institution of this suit, brought action in the McCracken circuit court to enjoin and restrain the sale of the unplatted tracts marked "Reserve," or any portion of either of said tracts, by the plaintiff herein, and to enjoin and restrain this plaintiff from making any use of said tracts marked "Reserve" in any way inconsistent with the use of the same as parks. It is alleged herein that the plaintiffs in the injunction suit contend therein that the original filing of said plat by the Gregory Heights Company, and the marking thereon of the two tracts as "Reserve" was a dedication of each of said tracts as a park space for the use of the public generally, forever, and that said plaintiffs in the injunction suit also claim therein that after the purchase by appellee in May, 1913, of the subdivision, it, through its agents, made representations to the effect that said tracts marked "Reserve" were and would remain park spaces, and that the company therefore could not now subdivide said unplatted areas into lots or make use of them inconsistent with their uses as parks. It is further shown in the pleadings in this action that the company is resisting the injunction suit, and has denied therein that the filing of the plat amounted to a dedication of said tracts of land marked "Reserve," as parks, and it has denied therein that, through its agents or in any other way, it ever made any representations to the effect that said tracts of land marked "Reserve" were or would be park space for the use of the public generally, or any other person or persons, except to the company and to those to whom it might sell said tracts in whole or in part, and that there has never been any dedication for the purpose indicated by the filing of the plat, or any representation by the company, or any construction thereof by it which might operate as an estoppel against it to deny such dedication.

It is also shown in the pleadings herein that in the injuction suit a temporary restraining order was issued against the company enjoining and restraining it from selling or conveying any part of either of the said tracts marked "Reserve," and enjoining and restraining it from making any use of either of said tracts, except for park purposes, and that said restraining order is still in full force and effect.

It is further alleged that the company built, under the terms of its contract with the water company in 1913, a pumping station on the lot of ground mentioned, and which it agreed to convey to the water company, and that same has been since continuously used as a location for said pumping station, and that same was so...