Thomas v. City of Horse Cave

• Decision Date: 13 June 1933
• Citation: 249 Ky. 713,61 S.W.2d 601
• Parties: THOMAS et al. v. CITY OF HORSE CAVE et al.
• Court: Kentucky Court of Appeals

61 S.W.2d 601

249 Ky. 713

THOMAS et al. v. CITY OF HORSE CAVE et al.

Court of Appeals of Kentucky

June 13, 1933

Appeal from Circuit Court, Hart County.

Suit by Horse Cave, a city of the fifth class, and others, against Dr. H. B. Thomas and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Rodes &amp Harlin, of Bowling Green, Charles E. Whittle, of Brownsville Dowling & Baird, of Munfordville, Walter C. Gibbons, of Horse Cave, and C. B. Larimore, of Munfordville, for appellants.

Woodward Hamilton & Hobson and Oldham Clarke, all of Louisville, and Mouser & Wilson, of Horse Cave, for appellees.

RATLIFF Justice.

The appellants, Dr. H. B. Thomas, Mrs. Carrie Thomas, his wife Mary Thomas Austin, Ruth Thomas Pohl, and her husband, "Doc" Pohl, own a tract of land in Horse Cave, a city of the fifth class (hereinafter called the city), on which is located the entrance to Hidden River Cave. This cave extends under a large part of the city and appellants take people through it for admission fees. The cave has two main avenues, and a stream of water flows along the winding course of each avenue. A short distance below the confluence of the streams, the appellants maintain a dam, and from the water of this dam appellants pump water for the use of their families and a number of tenants living near the entrance to the cave. For a number of years appellants sold water from this pool to the people of the city, and from 1930 to 1932 he leased this water system and water rights to the Horse Cave Water Company, a corporation which had a franchise until October, 1932, to furnish water to the people of the city.

It is claimed by appellees that no suitable water supply had ever been available to the citizens of the city and the water furnished had always been contaminated and under condemnation by the State Board of Health, and inadequate for fire protection. Because of these conditions, the mayor and city council undertook to create and sell a franchise for the purpose of maintaining and operating a system of waterworks for the city.

At a regular meeting of the city council on May 25, 1932, an ordinance was introduced to create and sell a 20-year franchise, which ordinance was read and copied into the record book and ordered to lie until the next regular meeting, June 20, 1932. On June 20, 1932, the city council met in regular session, and the minutes of this meeting recite that the purpose of the meeting was to act on an ordinance, 115 N. S., directing the sale of a franchise, and further recites: "And on motion of J. D. Reynolds, seconded by C. D. Branstetter, said ordinance, 115 N. S., was put upon passage and adopted by unanimous aye vote and ordered spread upon the record as follows: ***"

The council directed the mayor to advertise the franchise to be sold on the 5th day of July, 1932, to the highest and best bidder. Notice of the sale of the franchise was duly advertised as required by law and same was sold to W. L. McComas on July 5, 1932, which was at a purported regular meeting, and again adopted and copied into the records and recited that W. L. McComas was the purchaser thereof.

On September 6, 1932, at a regular meeting of the council, the purchaser, McComas, filed his written acceptance of the franchise, and the same was noted upon the records of the council.

It is alleged in the petition that pursuant to the franchise contract McComas immediately began the construction of the water system and spent approximately the sum of $30,000 in the construction of a reservoir, filteration plant, pipe lines, etc., and in obtaining leases to drill and in drilling numerous wells in the city; but that he was unable to locate a water supply sufficient for the needs of the people of the city and to give adequate fire protection, unless an examination and survey be made of the appellant's property by exploring the subterranean streams and caves and if permitted to make such inspections and surveys, including an exploration of the streams and cave owned by Dr. Thomas, to which he (Thomas) objected and refused to permit McComas, his agents or employees, to enter his premises or to make said survey. Then the city council directed and authorized the institution of this suit for the purpose of obtaining an injunction against Dr. Thomas enjoining and restraining him from preventing or interfering with the appellees, plaintiffs below, from entering his said premises for the purpose of locating a supply of water, preliminary to condemnation proceedings to acquire a supply of water for the purpose of carrying into effect the franchise.

Upon the verified petition, the Hart circuit court entered an order enjoining the appellants from preventing or interfering with appellees entering upon the land and other premises of Dr. Thomas for the purpose of making necessary preliminary examinations and survey for the purpose of locating a source of water for purposes above stated. Appellants, defendants below, applied to Chief Justice DIETZMAN for an order dissolving the temporary injunction, and on December 13, 1932, Judge DIETZMAN, then Chief Justice, entered an order dissolving the temporary injunction and directed that proof be taken and the case submitted on its merits.

The issues were made up, proof taken by the respective parties, and upon final hearing before the Hart circuit court, Judge Fulton rendered a judgment adjudging the appellees, plaintiffs below, the relief prayed for in the petition. This appeal results.

Three questions for determination are presented: (1) The validity of the franchise; (2) the right of the city to make a preliminary survey without showing by its records that it intends to condemn and construct a water plant; and (3) the right to restrain the owner of property from interfering with the right of a municipal corporation or a franchise holder to make a preliminary survey to locate water to supply the public need. These topics will be discussed in order.

1. The meetings and proceedings of the city council on May 25 and June 20 are not questioned by appellants. The only objection offered to the validity of the franchise is that the meeting of July 5, 1932, was not a regular meeting of the city council. It is insisted that July 4 was the regular meeting date of the council as fixed by ordinance, and because of it being a holiday, the meeting was postponed to July 5, and the proceedings had on that day were invalid, and for which reason the franchise is void for want of conformity to the Constitution and statutes relating to the granting of a franchise. It is insisted for appellees that because of the regular meeting of the council falling on a holiday (July 4) it could hold its meeting the day following with the same effect as if it had been held the previous day had it not been a holiday. Counsel for the respective parties argue this question at length in their briefs, but for the purpose of determining the validity of the franchise, it is not necessary for us to pass on that question. It is our view that it is immaterial whether or not the proceedings of the council of July 5 were valid or invalid in so far as the validity of the franchise is concerned. On May 25, 1932, the ordinance was introduced and read and laid over to June 20, following, on which date it was reintroduced and read and directed the sale of the franchise and directed the mayor to advertise the franchise to be sold on the 5th day of July, which was done, and McComas, the successful bidder, became the purchaser thereof. On September 6, 1932, at a regular meeting of the council, McComas filed his written acceptance of the franchise.

In the case of Cumberland Tel. & Tel. Co. v. City of Hickman, 129 Ky. 220, 111 S.W. 311, 314, 33 Ky. Law Rep 730, the initial ordinance was passed on August 16, 1894, in which it was ordered that the city clerk advertise for the public sale of a franchise on September 3, 1894, which was the date of the next regular meeting of the council. The ordinance introduced at the first meeting (August 16) detailed the provisions of the franchise to be granted, and was laid over until September 3 meeting. In the meantime the sale of the franchise...