City of Louisville v. Tyler

Opinion of the court by JUDGE DuRELLE Affirming. Suit was brought by Tyler against the Louisville & Nashville Railroad Company and others, owners of property abutting on Fulton street between Floyd and Preston, streets, in Louisville, and against the city of Louisville, seeking to enforce -a lien upon such property for the cost of laying granite pavement along that street, under a contract executed by Tyler with the city in pursuance of an ordinance. The chancellor dismissed the contractor’s petition against the owners of the abutting property, but rendered judgment against the city for the contract price of the improvement. The city appeals from the judgment against it, and the contractor from the judgment dismissing his petition against the abutting property holders. [593] The defense chiefly relied upon is that the improvement for which recovery is sought is not the original construction of the street. On behalf of tihe city, counsel earnestly and most ingeniously argiues that the question is- one purely of law1, and that the improvement of a street by original construction is such an improvement as, under the law, can be made a charge upon and enforced against the abutting property, and therefore, as it is conceded that the law did not authorize such charge against abutting property unless the improvement were provided for by ordinance, and as the improvement of Fulton street in 1874 was made under a resolution of the general council, there has never been an improvement of the street by original construction until the improvement now in litigation. A number of cases from Pennsylvania, are relied on in support ■of this contention. Those cases, however, seem to have turned upon the constitutional question whether the reconstruction of a street was a local improvement clearly (conferring special benefits on the property assessed, in which event only would such assessment be permissible by the Pennsylvania Constitution. The question in this State seems to us a different one. It was said by Judge Cofer, in City of Henderson v. Lambert, 14 Bush., 30, that: “The obligation of Jot owners to pay for improving streets does not rest alone on the ground that they are benefited by such improvements, and therefore ought, in natural justice,, to pay for them. That they are benefited furnishes the foundation for legislative power to require them to pay, but does not raise an implied assumpsit. There is no common-law liability resting upon lot owners to pay for the improvement of an adjacent street. Whatever liability they are subject to is created by statute, and! all such statutes [594] must be construed most strictly against those asserting claims under them.” By the act for the government of cities of the first class (section 2834, Kentucky Statutes) it is provided: “A lien shall exist for the cost of original improvement of public ways.” Under the former chanter of the city of Louisville the improvement of public ways was defined to mean all work and material used upon them in the construction or reconstruction thereof, and should be made and done as may be prescribed by ordinance.” Lucas’ Big., p. 13. By amendatory acts to that charter (Lucas’ Big., pp. 71, 73) it was required that, when the improvement was the original construction of the street, it should be made at the exclusive cost of the owners of lots in each quarter square where the contiguous territory was bounded by principal streets, and, where not so bounded, that the depth to which the assessment should extend should be prescribed by ordinance. These provisions are, in substance, contained in the present law (section 2833, Kentucky Statutes). See, also, section 2826. These statutes, and the decisions under them, do not show that there could be no original construction of a street except under an ordinance, but only that the cost of such original construction could not be charged upon abutting property unless the, improvement was made under an ordinance. The question seems to us, therefore, to be one of fact, and should depend upon whether the improvement was in fact the original construction of a public street as a street of the city. If it was in fact such original construction, any subsequent improvement thereof would be reconstruction or repair, not properly chargeable against the property of abutting owners. Nor do we see anything in the opinion in McHenry v. Selvage, 99 Ky., 232 (18 R., 473), 35 S. W., 645, in conflict with this conclusion. .Said [595] the court in that case: “The law seems to have been founded upon the theory that for such original construction the lot owners should meet the expense, because they are proportionately benefited, but that, when the Owners have done this much, the city should thereafter maintain the way. The street in question was originally a turnpike road, leading into the city. By the act of the General Assembly in 1868 the limits of the latter were extended so as to include a portion of the road, and it was thereafter a public way of the city, and as such a few repairs were made on it.” In that case an existing public road was taken into the city. As was necessary and proper, it was kept in repair by the city. It had never been constructed as a city street, and the court so held. In the case at bar the public way has been within the city limits for some fifty years, and, as we think the record abundantly shows, had been, in 1874, constructed as a city street. That it was not so constructed by ordinance, at the cost of the abutting owners, seems to us to make no difference in law. That it was not so constructed at the owners’ cost may have been in violation of the theory upon which the legislative enactment was adopted, but that can make no difference in the legal liability for the cost of an improvement to pay for which no implied assumpsit can arise. Such liability is the creature of the statute, and the statute does not create it except for original construction authorized, by ordinance. The record shows that that part of Fulton street in controversy was improved in 1874 by a firm of contractors under a contract executed with surety by which they bound themselves to construct “a turnpike road in Fulton street, from Brook to Preston, according to the specifications on file in the city engineer’s office, and which are made a part hereof as fully [596] as if the same were herein inserted, required to be so improved by a resolution passed by the general council of said city, and approved by its mayor on the '10th day of September, 1874.” The record also shows that this work was done and paid for by the city, and that at least twice thereafter repairs were made upon the street so constructed. That no sidewalk was not made is not material, for no sidewalk has been made up to the present day. Nor is it material that it was improved by building a “turnpike road,” which is well understood to mean a macadam pavement, the kind of pavement at the time in use on nine-tenths of the streets of the city which had been improved. The street was constructed as a city street, used as a city street, repaired as a city street, and worn out as a city street, and the cost of its reconstruction should, under the law applicable to cities of the first class, be -paid for by the city. The provisions of the act for the government of cities of the first class (section 2834, Kentucky -Statutes) that “in no event, if such improvement (by original construction) be made as is provided for, either by ordinance or contract, shall the city be liable for such improvement without the right to enforce it against the .property receiving the benefit thereof,” does not apply in this case, because we hold the present improvement not to be original construction of the street, but reconstruction. For the reasons given, the judgment is affirmed.