Reed and Others v. Bates and Others

• Decision Date: 30 April 1903
• Parties: Reed and Others v. Bates and Others.
• Court: Kentucky Court of Appeals

115 Ky. 437

Reed and Others v. Bates and Others.

Court of Appeals of Kentucky.

April 30, 1903.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 2.,

JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. AFFIRMED.

LANE & HARRISON, FOR APPELLANTS.

MATT O'DOHERTY, OF COUNSEL.

W. W. & J. R. WATTS AND WILLIAM FURLONG, FOR APPELLEES.

COPYRIGHT MATERIAL OMITTED

OPINION OF THE COURT BY JUDGE PAYNTER — AFFIRMING.

The only question involved here is as to whether or not the cost of the improvement of Zane street, between Fifth and Sixth streets, by original construction of the carriageway by grading, paving, and curbing the same, should be apportioned in accordance with section 2835, Kentucky Statutes, 1899, or under the act approved March 19, 1898 (Sess. Acts 1898, p. 120, c. 48), which went into effect June 19, 1898, and which act is amendatory of the act of which the section to which reference is made is a part. Under the law before the passage of the act of 1898, the cost of curbing in the improvement by original construction of the carriageway was to be charged only against the owners of lots in front of which the curbing was placed, except the owners of corner lots were chargeable with the cost of curbing their sidewalk intersections; and, if a corner lot had a 30-foot front, and extended back to the depth of the territory assessed, its owner was chargeable with 25 per cent. more than the owners of lots of the same size within the taxing district. By the amendment the cost of grading and curbing, when a part of the improvement by original construction of a carriageway, should be apportioned against the owners of lots in the quarter squares contiguous to the improvement, and according to the number of square feet owned by each. The owners of corner lots in quarter sections are not required to pay for the intersections and the 25 per cent. more than other lot owners. In other words, under the amendment the curbing constitutes part of the cost of the construction of the street, not of the sidewalk. The ordinance under which the improvement was made was passed June 6, 1898, and reads as follows: "That the carriageway of Zane street, from the west line of Fifth or Pope street, to the east line of Sixth street, shall be thirty feet wide, and shall be improved by grading, curbing and paving with vitrified brick or block pavement, with corner stones at the intersections of the streets and alleys, and footway crossings across all intersections, streets and alleys, in accordance with the plans and specifications on file in the office of the board of public works. Said work shall be done at the cost of the owners of ground as provided by law, and all ordinances in conflict herewith be and the same are hereby repealed." It will be observed that it was passed after the enactment of the amendment, but before it took effect. So the section to which we have referred was in force when the ordinance was passed. The city did not enter into...