Hackworth v. Louisville Artificial Stone Co.

JUDGE BURNAM delivered the opinion of the court. The facts being substantially the same in these two cases, by consent of parties they are heard together. Both are suits upon apportionment warrants issued to appellees by the city council of Shelbyville for the cost of curbing and sidewalk in front of a lot owned by appellant, constructed under a contract with the city made pursuant to an ordinance, regularly approved, authorizing the letting of the work. Appellant resists payment on several grounds. Tbe city council adopted an ordinance requiring appellant and other owners of certain described property within a specified time to construct sidewalks and curbing of h particular description in front of their respective lots. [237] The ordinance setting out the work to be done says: “Said sidewalk is to be constructed by putting in 5-inch stone curbing, in pieces not less than two feet long and two feet wide; the sidewalk to be ten feet wide, exclusive of curbing, and to be made of granitoid.” There was no attempt to change or alter the grade of the street. The ordinance was simply requiring the property holders to reconstruct their pavements, and seems to us to be sufficiently specific and definite. The testimony shows that “granitoid” is a peculiar character of pavement, which is sufficiently indicated by its name. Section 3569, Kentucky Statutes, provides that “in all actions to enforce liens, as authorized by this act, a copy of the ordinance authorizing the improvement or work, a copy of the contract therefor, and a copy of the apportionment, each attested by the clerk of the board of councilmen, shall be prima facie evidence of the due passage and approval of ihe contract, and of every other fact necessary to be established by the plaintiff in such action to entitle him io the relief authorized to be given in this act.” The testimony shows that the ordinance requiring the pavement to be built was published in a newspaper for the time required by the charter. There can1 be no question that the city authorities have the right to order sidewalks constructed or reconstructed, and to require payment therefor from the abutting lot-owners. See section 3566, Kentucky Statutes; Loeser v. Redd, 14 Bush, 18; Purdy v. Drake, 17 Ky. L. R., 819, [32 S. W., 939]; and Board of Councilmen of Frankfort v. Murray, 99 Ky., 422, [36 S. W., 180]. Another alleged error relied on is that the judgment for the whole of the cost of the improvement is against the interest of the life tenant. [238] Defendant, as tenant by the curtesy, has possession and is in the enjoyment of all the rents and profits accruing from the buildings on these lots, and while the rule is well settled that the burden of paying for the improvement of a street by. original construction, which adds permanently to the value of abutting lots, must be apportioned between the estate of the life tenant and the remainder-man, we are of the opinion that the work sued for in this action is not the character of work to which this principle applies. The old pavement had been worn out by long use, and defendant was required to pay only for putting down a new one. The improvement was more in the nature of a repair, like putting on a roof, or doing any act which is necessary to preserve the property and prevent its decay. A good pavement in front of a business house is as essential to its use and enjoyment as that the building should be kept painted and under roof. The cost of the repair seems to be reasonable, and we are of the opinion that it should be paid for by the life tenant. The proof fails to support the contention of appellant that he has suffered injury as a result of changing the grade in constructing the new pavement. In fact, the proof is conclusive that there has been no change in the grade, so far as the curbing is concerned. The only change was to reduce the slant along a portion of the pavement so as to make it level, and in conformity with the remainder of the sidewalk. For the reasons indicated the judgment is affirmed.