Walker v. City of Richmond

• Decision Date: 15 December 1916
• Citation: 173 Ky. 26
• Parties: Walker, et al. v. City of Richmond. Same v. Same.
• Court: Kentucky Court of Appeals

173 Ky. 26

Walker, et al. v. City of Richmond.

Same v. Same.

Court of Appeals of Kentucky.

Decided December 15, 1916.

Appeal from Madison Circuit Court.

CHENAULT, WALLACE & WALLACE, JOHN NOE, J. A. SULLIVAN and C. C. WILLIAMS for appellants.

D. M. CHENAULT for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE MILLER — Reversing on the first appeal and affirming on second appeal.

These two actions were instituted by the city of Richmond against Mary Jane Walker and the other joint owners of two town lots, one located on Lancaster Avenue and the other on Second street, within the boundary of said city. By the first action the city sought to recover the sum of $685.23, the cost of constructing a pavement, curbing and gutter in front of appellants' lot on Lancaster Avenue; while, by the second action between the same parties, the city sought to recover $416.00, the cost of constructing a pavement, curbing and gutter in front of appellants' lot on Second street.

The appellants' only defense, now pressed, is presented by the following clause of their answer and counterclaim:

"They say that one Joyle J. Walker, their ancestor, was the owner of the land, set out and described in the petition, fronting on what was then known as the Lancaster Pike, and they aver that some time, about 1870-1-2-3; that the said city of Richmond desired to widen the aforesaid pike, and, in order to do so, the city of Richmond agreed with Joyle J. Walker, who was the owner of the said property and in possession of same, occupying and using it as his homestead, in writing that, if the said Joyle J. Walker would set back his fence, running along the aforesaid highway, a distance of twelve feet, and would surrender the aforesaid twelve feet to the city of Richmond, Kentucky, that the said city would never require the owners of the said property of said Walker to grade, build or maintain a sidewalk along said highway, and that the said city of Richmond would, at its own expense, grade, build and forever maintain a pavement, such as may be necessary, or required by the said city of Richmond. In pursuance of the said agreement, the said Joyle J. Walker did set back his fence about twelve feet along the said highway, the entire width of said property, and relinquished the part cut off from his property, to the said city of Richmond, Kentucky, in pursuance to its aforesaid contract, accepted the said land, and then, about that time, did grade the same for the purpose of putting down a pavement, and did construct a curb along the entire length of said property, and ever since that time they have held possession of the said strip of land, under and by virtue of the aforesaid contract, and not otherwise. The defendants aver that this contract has been recognized by both parties to the same, ever since the making thereof, and the same has been carried out by both parties since then, until about the time of the passage of the ordinance set out in the petition."

By way of relief, the defendants asked that in case the petition should not be dismissed, that their property be restored to them in its original condition, with the privilege of resetting the fence along the property line, and that they have judgment against the city of Richmond for $1,000.00, which they alleged would be the cost of removing the sidewalk from the strip of land in case of its restoration. The defense applies, however, only to the suit to recover for the construction of the pavement on Lancaster Avenue. The answer does not claim that the agreement made between the city and the defendants' ancestor, related in any way to the property fronting on Second street. The judgment in the Second street case will, therefore, be affirmed without further consideration.

What follows in this opinion will relate to the action concerning the improvement on Lancaster Avenue.

The city contends that the contract of exemption relied upon by defendants is not effective as a defense, for the double reason that it constituted a covenant merely personal to Joyle Walker, and carried no rights to his heirs or successors in title; and further, if it constituted a covenant running with the land, the city had no authority to make it.

The court sustained a demurrer to the counterclaim, and the defendants declining to further plead, a judgment was entered for the plaintiff enforcing the lien. The defendants appeal, and for a reversal they urge three grounds: (1) that the contract between the city and Joyle Walker, as set out in the answer, was a real covenant running with the land, and not a mere personal covenant with their ancestor; (2) that the doctrine of ultra vires relied upon by the appellee does not apply to the contract with their ancestor, because it has been completely executed; and, (3) that the circuit court erred in rendering a judgment when some of the papers in the case had been lost and not restored, when the case was tried.

It is conceded by opposing counsel, that if the agreement between Joyle Walker and the city of Richmond with respect to the 12 feet of land, constituted a personal covenant with him, the appellants cannot now rely upon it; but, if that agreement constituted a real covenant running with the land, it survived to the benefit of any subsequent owner of the land, and may be used by way of defense by these defendants.

The test as to what are covenants real, is stated in 7 R. C. L., page 1101, as follows:

"While there is authority to the effect that the first criterion by which to determine whether a given covenant runs with the land or not is the nature and purpose of the covenant, and where this is not decisive, the intent of the parties, as expressed in their deed, will determine the question — a rule in emulation of that stated in Spencer's case — under the modern rules of interpretation the order of inquiry above stated is reversed, and consideration is given, first, as to whether the parties meant to charge the land; and secondly, whether the burden is one that can be imposed consistently with policy and principle. And so, where the covenant concerns land, and is one which is capable of being annexed to the estate, and it appears that it is the intention of the parties as expressed in the instrument, then it should be construed as running with and charging the land thereafter in order to carry out such intention."

Gibson v. Porter, 12 Ky. L. R. 917, 15 S. W. 871; Flege v. Covington & Cincinnati Elevated Ry. T. & B. Co., 122 Ky. 350, 121 Am. St. Rep. 463; Ferguson v. Worrall, 125 Ky. 618, 9 L. R. A. (N. S.) 1261; Sexauer v. Wilson, 136 Iowa, 357, 14 L. R. A. (N. S.) 185, (annotated), are to the same effect.

In City of Richmond v. Bennett, 33 Ky. L. R. 279, 109 S. W. 904, 16 L. R. A. (N. S.) 548 — a case very much like the case at bar — Bennett's grantor had conveyed a strip of land to the city for the consideration, in part, that the city would build a fence in front of the Bennett lot, and would never compel Bennett's grantor to grade, curb or build a pavement on the eastern side of his lot. The city took possession of the strip of land conveyed to it, constructed a board walk along the street next to the property, which, in course of time, became decayed and out of repair. When the city passed an ordinance requiring Bennett, the subsequent purchaser, to build a new sidewalk, he relied by way of defense, upon the contract above referred to. The court, however, held that the agreement with Bennett's grantor was merely a personal exemption and did not go with the land to his grantee. Moreover, the court in that case, expressly declined to pass upon the question of the power of the city to make such a contract exempting one of its citizens from the burdens that were common to all citizens.

Taking the language of the answer as stating the effect of the contract in the case before us, as we must upon demurrer, it clearly states a contract that ran with the land, since it expressly avers that the contract provided that the city would never require the owners of said property to build a sidewalk in front of it, and that the city would forever maintain a pavement there at its own expense.

The contract, therefore, stating a covenant which ran with the land, appellants had the right to rely upon it, provided the city had the right to make the contract; and that brings us to the second question under consideration.

Being a creature of the state, and continuing its existence under the sovereign will and pleasure, a municipal corporation possesses such powers, and such only, as the state, either expressly or by necessary implication, confers upon it, subject to addition or diminution at its supreme discretion. 28 Cyc. 258; Johnston v. Louisville, 11 Bush 533. It has no inherent power to exempt from taxation property which it is authorized by its charter, to tax. Whiting v. West Point, 88 Va. 905, 15 L. R. A. 860. And, while the legislature may confer the taxing power upon...