Pursiful v. City of Harlan

• Decision Date: 20 January 1928
• Citation: 222 Ky. 658,1 S.W.2d 1043
• Parties: PURSIFUL v. CITY OF HARLAN et al. PURSIFUL et al. v. SAME.
• Court: Kentucky Court of Appeals

1 S.W.2d 1043

222 Ky. 658

PURSIFUL v. CITY OF HARLAN et al.

PURSIFUL et al. v. SAME.

Court of Appeals of Kentucky

January 20, 1928

Appeal from Circuit Court, Harlan County.

Actions by the City of Harlan, for the use of Owen Kelly and E. S Forester, against B. G. Pursiful and against H. C. Slemp and another, and action by B. G. Pursiful against the City of Harlan and others. From adverse judgments, defendants in first two actions appeal, and from adverse judgment in said Pursiful's action against the City of Harlan, he appeals. Affirmed.

Lee &amp Snyder, of Harlan, for appellants.

J. S Forester, E. H. Johnson, E. L. Morgan, and Chas. B. Spicer all of Harlan, for appellees.

DRURY C.

B. G. Pursiful is seeking to reverse a judgment by which the city of Harlan, for the use and benefit of Owen Kelly and E. S. Forester, street contractors, was adjudged to have a lien for the sum of $1,491.15, with interest, upon two lots belonging to Pursiful, situated on Mountain View avenue in the city of Harlan. H. C. Slemp and Eunice Slemp Flannery are seeking to reverse a judgment by which the city of Harlan, for the use and benefit of Kelly and Forester, contractors, was adjudged to have a lien for $879.10, with interest, upon certain property belonging to Slemp and Flannery, situated on Mountain View avenue in the city of Harlan, and B. F. Pursiful is seeking to reverse a judgment denying to him the sum of $3,000, which he sought to recover of the city of Harlan and the said Kelly and Forester, contractors, for changing the grade in front of his property. All of these appeals shall be disposed of in one opinion.

On March 6, 1924, the city council of Harlan, which is a city of the fourth class, passed a resolution declaring it to be a necessity to improve, grade, construct, surface, pave, gutter, etc., various streets set out in said resolution, among them being Mountain View avenue. Six councilmen voted "Yea," none voted "Nay." The resolution was duly published in Harlan Enterprize. On April 11, 1924, an ordinance providing for the improvement was introduced and passed its first reading, four councilmen voting "Yea," none voting "Nay," and, at a meeting of the council held on April 28, 1924, this ordinance had its second reading, and was passed, the minutes of that meeting showing that five members of the council were present, and that the ordinance was passed unanimously, but there is nothing to show the yeas and nays were taken; certainly they were not recorded. On June 21, 1924, after due advertising and reception of bids, the city of Harlan contracted with Owen Kelly and E. S. Forester for the construction of these streets. The engineer reported the completion of the work on Mountain View avenue, and filed an apportionment of the cost of the improvement, which was advertised in the Harlan Enterprize on September 19, and on September 23 the street committee met to inspect the work and to hear complaints and objections to the assessments. Pursiful objected, his objections were reported to the council, considered and on September 29 were overruled, and an ordinance passed, imposing assessments aggregating $1,355.59 upon his property to pay for this improvement, and these assessments, together with a 10 per cent. penalty, make up the $1,491.15 for which the city was adjudged to have a lien on his property.

Pursiful's hope of reversing his judgment is based on the fact that the minutes fail to show the yea and nay vote was taken when this ordinance was finally passed, but that question was decided contrary to his views in the case of Cornett v. Bailey Const. Co., 203 Ky. 268, 262 S.W. 276.

In the making of this improvement, the city council deemed it necessary to grade these streets, and accordingly they did lower the grade in some places and raised it in others, and, at the point where the property of Pursiful abuts on this street, the grade was lowered about six feet, and, feeling himself aggrieved, Pursiful, on August 8, 1924, filed a suit against the city of Harlan and Kelly and Forester, contractors, in which he sought to recover $3,000 as damages to his property resulting from this change of grade. It is admitted that this is the original establishment of a grade for this street, and we have repeatedly held that municipal corporations are not liable for injuries to abutting property resulting from the original establishment of a grade of a street. City of Somerset v. Carver, 221 Ky. 552, 299 S.W. 191; Melvin v. Central Const. Co., 185 Ky. 659, 215 S.W. 811; City of Earlington v. Newton, 215 Ky. 445, 285 S.W. 196; Ewing v. City of Louisville, 140 Ky. 726, 131 S.W. 1016, 31 L.R.A. (N. S.) 612; Owensboro v. Singleton, 111 S.W. 284, 33 Ky. Law Rep. 775.

If this were not the original establishment of a grade for this street, this rule would not be applicable. We have uniformly held, since the adoption of the present Constitution, that a municipality, having once established a grade, cannot thereafter change it without responsibility to abutting property owners for resulting damages. Dayton v. Rewald, 168 Ky. 398, 182 S.W. 931; Louisville v. Lausberg, 161 Ky. 361, 170 S.W. 962; Erlanger v. Cody, 158 Ky. 625, 166 S.W. 202; Cassell v. Nicholasville, 134 Ky. 103, 119 S.W. 788; Owensboro v. Hope, 128 Ky. 524, 108 S.W. 873, 33 Ky. Law Rep. 375, 15 L.R.A. (N. S.) 996; Louisville v. Caron, 90 S.W. 604, 28 Ky. Law Rep. 844; Frankfort v. Edelin, 82 S.W. 279, 26 Ky. Law Rep. 601; Layman v. Beeler, 113 Ky. 221, 67 S.W. 995, 24 Ky. Law Rep. 174; Louisville v. Hegan, 49 S.W. 532, 20 Ky. Law Rep. 1532, Ludlow v. Detweller, 47 S.W. 881, 20 Ky. Law Rep. 894.

Which rule shall apply is determined by whether the grading done is the original establishment of a grade or is the change of a theretofore established grade. The petition alleged that this grading was done before and without the passage of any ordinance adopting or approving specifications for such change, and seeks to hold them liable as trespassers, but there is a complete failure of proof to sustain that. It is charged in the petition that this changing of the grade was done...