Taylor v. Farmers & Gardeners Market Ass'n, Inc.

• Decision Date: 22 June 1943
• Citation: 173 S.W.2d 803,295 Ky. 126
• Parties: TAYLOR v. FARMERS & GARDENERS MARKET ASS'N, Inc.
• Court: Kentucky Court of Appeals

173 S.W.2d 803

295 Ky. 126

TAYLOR v. FARMERS & GARDENERS MARKET ASS'N, Inc.

Court of Appeals of Kentucky

June 22, 1943

Rehearing Denied September 28, 1943.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Action by Sara A. Taylor against the Farmers & Gardeners Market Association, Inc., to recover one-third of the rental value and proceeds of a public sale of a city lot, in which defendant filed a counterclaim and cross-petition for one-third of the amount of taxes paid by defendant on the lot and partition thereof between the parties. From a judgment overruling plaintiff's exceptions to a report of partition commissioners, confirming the report, dismissing plaintiff's petition and amended and substituted petition, and ordering a master commissioner to execute and deliver deeds of the parties' respective shares of the lot as partitioned by the commissioners, plaintiff appeals.

Affirmed in part, and reversed in part.

Fielden Woodward and Woodward, Dawson & Hobson, all of Louisville and Flynn and Mohrman, of St. Louis, Mo., for appellant.

Edward G. Klemm, of Louisville, for appellee.

RATLIFF Justice.

Appellant and appellee own jointly a vacant lot 63 feet in width and 142 feet in depth, situated on the south side of Liberty Street in the city of Louisville. The property lies within the block bound on the north by Liberty Street, on the east by Floyd Street, on the west by Brook Street, and on the south by Pearl Street. There is an alley running east and west through the center of the block and the lot in question extends 142 feet south from the south side of Liberty Street to the alley.

Appellant who was the plaintiff below, filed this action in February, 1941, alleging that she owned a one-third undivided interest in the lot and appellee, a corporation, owned the other two-thirds undivided interest, and alleged further that from September 10, 1938, until the date of the filing of the petition, the appellee had the exclusive use of the lot as a parking and loading space in connection with its business and for its exclusive benefit and profit and that the reasonable rental value of the property was $50 per month and that she (appellant) had received no rental or other income from the property since September 10, 1938. By an amended and substituted petition the allegations as to the rental value of the property was corrected and it was alleged that $150 per month was a reasonable rental value for the lot and that she was entitled to recover of appellee one-third of the rental value, or the sum of $1,500, for which sum she prayed judgment against appellee, and further asked for a decree ordering the lot sold at public sale and that one-third of the proceeds of the sale be paid to her.

The defendant (appellee) filed its general demurrer to the petition and without waiving the same filed its answer, counterclaim and cross-petition in which it admitted the joint ownership of the property as alleged in the petition, but denied all the allegations concerning the use of the lot and the rental value of the same or that appellant should recover of it any sum for rents. It further pleaded for counterclaim against appellant that it had paid the taxes on the lot for the year 1940 amounting to the total sum of $109.53, and asked to recover of appellant one-third of that amount or the sum of $36.51, which was admitted by appellant and that item is not involved in this appeal. For further counterclaim and cross-petition appellee alleged that the lot is divisible into two lots, one having a width of 21 feet representing the one-third interest owned in the whole lot by the appellant, and a lot having a width of 42 feet representing the two-thirds interest owned by appellee. It further alleged that it was the owner of the lot lying immediately along the easterly line of the lot in question and that it is entitled to have its two-thirds interest in the lot owned jointly by it and appellant laid off and allotted to it adjoining the lot it now owns, and that the lot could be divided as indicated without detriment or injury to the plaintiff and asked that commissioners be appointed to divide the lot between the parties as indicated. Later appellant filed an amended and additional petition in which she alleged that the lot is indivisible and cannot be divided without materially affecting and decreasing the value of it and that a majority of the property in that block adjoining the lot in question is owned by appellee and that all of said real estate is located in the marketing section of the city of Louisville in what is known as the "Haymarket," and that the real estate at that location is valuable for use as a parking, loading and unloading space for trucks and customers in the marketing business, and that its value is due to the fact that the entirety of the real estate is suitable for that use and that a partition or division of the property will materially affect and decrease the value of the same for such use.

By subsequent pleadings issue joined on the question of rents and the divisibility or indivisibility of the lot. On April 25, 1941, appellee filed its motion for the appointment of commissioners to partition the lot between the owners thereof and also filed its demurrer to so much of the petition as sought a recovery of rents. On June 12 the court sustained the demurrer to the petition insofar as it sought a recovery of rents and also sustained appellee's motion for the appointment of commissioners to make a division of the property and appointed three commissioners and directed them to examine the property and determine whether or not it could be divided between the parties without impairing its value or the value of the respective interests of the parties and that if the commissioners determined that the lot can be divided between the parties according to their respective interests that the commissioners shall then proceed to make the partition accordingly, and further ordered that in making the partition or division the commissioners shall allot to appellee its share or interest in the property on the east side thereof which adjoins the property then owned by appellee. Appellant objected to the appointment of the commissioners or a division of the property, which objection the court overruled with exceptions.

The commissioners filed their report stating that they found that the property could be divided between the joint owners without impairing its value or the value of the respective interests of the parties, and allotted to appellee approximately 42 feet frontage adjoining the property it then owned, and allotted to appellant approximately 21 feet frontage representing her one-third interest therein.

On June 20, 1941, appellant filed exceptions to the report of the commissioners objecting and excepting to the report with respect to their finding that a division of the lot would not impair the interests of the respective parties, and particularly the interest of appellant, insisting that a lot 21 feet in width on the west side as allotted to her would not be a just or equitable distribution to her and would be too small for commercial use and its marketability would be impaired; that one-third of the whole lot would not be equal in value to onethird of the entire lot and in fact would not be equal to one-sixth of the value of the entire lot; that the division as made by the commissioners is not fair and equitable and is without regard to the rights of the parties and particularly of the appellant. On June 27, 1941, appellee moved the court to confirm the commissioners' report and submit the case for judgment, to which appellant objected and the case was ordered passed to November 13, 1941, for a hearing, and on November 13 by agreement of parties the case was passed to December 4, 1941, on which latter date appellant moved the court for an order of reference to...