Wendt v. Tucker

• Decision Date: 07 November 1919
• Citation: Wendt v. Tucker, 185 Ky. 626, 216 S.W. 61 (Ky. Ct. App. 1919)
• Parties: WENDT ET AL. v. TUCKER.
• Court: Kentucky Court of Appeals

216 S.W. 61

185 Ky. 626

WENDT ET AL. v. TUCKER.

Court of Appeals of Kentucky.

November 7, 1919

Rehearing Denied Dec. 19, 1919.

Appeal from Circuit Court, Campbell County.

Suit by W. R. Tucker against Louis H. Wendt, the City of Dayton, and others. From judgment for plaintiff, the named defendants appeal. Reversed and remanded.

Quin J., dissenting.

Wm. U Warren and C. W. Yungblut, both of Newport, for appellants.

Hubbard Schwartz, of Newport, for appellee.

CLAY C.J.

The grade of Terrace avenue in the city of Dayton was quite steep. For a long distance a portion of the east side of the roadway was occupied by a ravine, which also extended beyond the roadway for a few feet. This ravine was several feet in depth, and the width of that portion in the roadway varied from about 3 or 4 feet in certain places to 15 feet or more in other places. The board of council of the city of Dayton passed a resolution declaring the necessity for the improvement of Terrace avenue by original construction, with combined concrete curb and gutter and bituminous macadam roadway and cement sidewalk, and directing the city engineer to report the grade for said street, together with plans and specifications and an estimate of the cost thereof. The plans and specifications prepared by the city engineer provided for a fill or embankment, and for 500 feet of drainpipe to carry off the water. An ordinance was passed approving the plans and specifications, and ordering the improvements. Upon completion of the work, the cost thereof was assessed against the abutting property holders.

W. R Tucker, one of the abutting property holders, brought suit to enjoin the issue of apportionment warrants by the city to the contractor, Louis H. Wendt. Wendt answered and set up his lien. On final hearing the chancellor adjudged that the cost of the drain and catch-basins could not be assessed against the property owners, but that the city was liable therefor. Following this ruling, Wendt was adjudged a lien on Tucker's property for the sum of $172.82, and was given judgment against the city for $39.68. Wendt and the city appeal.

The action being one to enforce a statutory lien on real estate and Wendt having been denied a lien for a portion of his claim, we have jurisdiction of the appeal, although the amount of money involved is only $39.68. Section 950, Kentucky Statutes.

In support of the judgment it is argued that the drain was a separate improvement not provided for by the ordinance; that it was not laid in the roadway, but on private property; that it was not built in front of Tucker's property; and that Tucker had already been assessed $1 per front foot for a sewer theretofore constructed by the city. We may concede that if the drain in question was, as a matter of fact, a part of the sewerage system of the city, and therefore a separate improvement, an ordinance providing for its construction would have been necessary before the cost thereof could have been assessed against the property owners. Manifestly, the power to order a street improved carried with it, as a necessary incident, the additional power to adopt such plans and specifications as are reasonably necessary to make...