Sutton's Heirs v. City of Louisville
| Decision Date | 05 April 1837 |
| Citation | 35 Ky. 28 |
| Parties | Sutton's Heirs v. The City of Louisville. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.
Mr Owsley and Mr. Crittenden for plaintiffs.
No appearance for defendant.
Under the authority of a statute of 1831, amendatory of the charter of incorporation of the city of Louisville, declaring that in opening or extending streets, the corporate authorities might proceed to assess and enforce, through the instrumentality of the Circuit Court for Jefferson county, as well the value of advantages, as of damages, which, in the opinion of a jury, would accrue to any of the citizens in consequence of any such opening or extension--the Mayor and Councilmen of that city, in April, 1832, petitioned the said Court to cause summonses to issue against Joseph Merril and the heirs of Gabriel Overstreet, to show cause why sixth cross street should not be extended through their ground from Jefferson to Green street; and upon the appearance of Merril and Overstreet's heirs, an amended petition was filed, suggesting that the widow and heirs of one Sutton, and Benjamin P. Buckner, who held as purchaser under one of those heirs, owned all the ground adjoining the western side of the street, as proposed to be extended, and would be greatly benefitted by the extension; and therefore praying for citations against them also, to show cause why the street should not be extended, and why judgment should not be rendered against them, for the assessed value of the alleged benefit. And afterwards, on the motions of Merril and Overstreet's heirs, writs of ad quod damnum, for their respective benefits, having been ordered, and the court having, also, directed an assessment of the value of the advantage of the proposed extension to Buckner and Sutton's heirs--the jury, empanneled pursuant to the order, reported that they had assessed the damages to Merril at six hundred and fifty dollars, and those to Overstreet's heirs at six thousand dollars, and the value of advantage to Sutton's heirs at nine hundred dollars and thereupon, judgment was rendered against " Emily Sutton, & c.," for nine hundred dollars, in favor of the city of Louisville; to reverse which, Emily Sutton, the widow, and others, the heirs of Sutton, deceased, prosecute this writ of error.
Statement of the facts, proceedings and judg't--which is erroneous for several reasons, viz.:--
The record shows that there was an infant def't, and does not show that he appeared, or was summoned.
A jury found that a public improvement would be a benefit, of a certain value, to a lot belonging to heirs, and in which a widow has a dower interest; a joint judg't against the widow and heirs--whose interests are different--for that value can not be sustained.
A joint judg't against the heirs, subjecting each to the payment of the whole sum, in such case, can not be sustained; if there could be any such judgment, it should be a separate judgment against each one, according to his interest.
The judgment is vague, not showing whether certain parties are included in it, or not.
The proceedings were under a statute which only authorized the city to be actor, and a judg't against defendants, who were summoned at the instance of individuals--can not be sustained.
The judgment must be reversed for several reasons:
First. One of Sutton's heirs appears to have been an infant, and the record exhibits no proof that she appeared, or was ever cited to appear.
Second. As the interest of Emily Sutton was only that of widow, a joint judgment against herself and Sutton's heirs was unjust and erroneous.
Third. As the estimated advantage was several, it was erroneous to render a judgment in solido against all, for the whole amount of the joint assessment, and thus impose on each the whole burthen.
Fourth. The judgment is vague and indefinite in not showing whether Buckner is embraced in it, nor whether the heir from whom he purchased, and who was not made a party, is included.
Fifth. The city alone had a right to such an assessment and judgment against Sutton's heirs; and the order for the inquisition as to them, seems to have been made?? not at the instance of the city, but on the motion of Overstreet's heirs, who had no right to ask such an inquiry.
Sixth. But there is, in our opinion, a more radical error than any of the foregoing; and that is, that there was no constitutional power to render such a judgment.
An act of the Gen. Assembly authorizes the mayor and council of Louisville (thro' the intervention of the Jefferson Circuit Court) to cause the value which the " advantages of opening any street or alley, or the extension thereof" will be " to each and every proprietor who will have a front thereon" --to be assessed by a jury, and to compel such proprietors to pay the assessments to the city; the act is, in that respect, unconstitutional, and can not be enforced. For--
An owner of private property can not be required to pay, in any direct mode, for any benefit or advantage which may accrue to him from public improvements.--The constitution protects him against all such demands.
When " private property" is required ‘ for public uses,’ the owner is, by the constitution, entitled to just compensation for it, in money. But if in addition to its intrinsic value he claims an indemnity, for the losses and inconveniences which will, incidentally devolve upon him, in consequence of the public appropriation of his property--in estimating those incidental losses and inconveniences, the profits, advantages and...
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Woodbridge v. City of Detroit
... ... appeals of that state. In Sutton's Heirs ... [8 Mich. 287] ... v. City of Louisville, 35 Ky. 28, 5 Dana 28, it was ... held the ... ...