Comley v. Am. Standard Asphalt Co.

Opinion of the Court by Judge Nunn — Affirming. Tn the year 1904 the city of Louisville hy appropriate proceedings caused the original construction of the carriageway of Rosewood avenue, from Baxter avenue to Von Borries avenue. The ordinance provided for the improvement to he made at the cost of the owners of the abutting land as provided hy law. After the completion of the improvement and the acceptance of the work hy the city of Louisville, the hoard of public works of that city apportioned the cost of the improvement pursuant' to their idea of what the term “according to law” shown in the ordinance meant. Their construction of this term resulted in an assessment against the property on the West side of Rosewood avenue, from Baxter avenue to Yon Borries avenue, extending hack westwardly to a line half way to Beechwood avenue, and on the east side of Rosewood avenue, from Baxter avenue to Yon Borries avenue, extending hack to a line midway to Edenside avenue. This court, in an opinion delivered in the case of the City of Louisville v. American Standard Asphalt Co., 125 Ky. 497,102 S.W. [266] 806, 31 Ky. L. R. 133, reached the conclusion that the territory on the east side of Rosewood avenue, which was assessed for the cost of the improvement, was so large that it could not be considered a square, within the meaning of the charter of cities of the first class, and the court directed a reapportionment pver a new district, comprised of the same territory on the west side of Rosewood avenue and an equal distance on the east side of that avenue. On a return of the case to the lower court this reapportionment was made, as a result of which the Schusters, on the east side, were released from a considerable portion of the cost of the improvement, and consequently the amount from which they were released was placed proportionately upon the property on the west side, which increased the assessment for the cost of the improvement to that extent. The warrants issued by the board of public works for the cost of the improvement, as first assessed, were delivered to the asphalt company, and the persons owning property on the west side paid their assessment and had a release of the liens on their property entered on the record in the office of the board of public works. After this, and before the second assessment was made under the opinion of this court, one Emma Deitrich, an owner of one of the lots on the west side of Rosewood avenue, sold and conveyed the lot for a valuable consideration to appellants in this appeal. After this second assessment and apportionment was made, appellee, American Standard Asphalt Company, filed an amended petition, making all the property owners on the west side parties defendant to the action, and asked for an enforcement of their liens upon their property for the additional assessment. Appellants, Comley and wife, resisted the payment [267] of this assessment, and in substance claimed in their answer that they purchased the property after the first assessment and before the second; that they were innocent purchasers of the property; that the first assessment had been made upon the property and paid by their vendor, and the lien was released on the record in the office of the board of public works; that they had no knowledge or information of any claim against their property; that by the exercise of reasonable, ordinary care and diligence they could not have learned of such a claim as has been asserted herein; that they paid a full and valuable consideration for the property, and received the conveyance of the property without any knowledge or notice, either expressed or constructive, of the claim that appellee asserted; and also alleged that by reason of these matters the appellee was estopped from asserting or claiming any lien against their property. The court sustained a demurrer to their answer, and they have appealed. Appellants present many reasons for a reversal, but we deem it unnecessary to refer to but two of them, as the others were settled by the former opinion of this court in the case referred to. The first reason that we will notice is their claim that the second apportionment of the cost of the improvement of Rosewood avenue was not binding upon them, for the rea.son that neither they nor their vendor, Emma Deitrich, were parties to the action at the time of this assessment, nor were they made parties until some time after that. It is true that they are not bound or precluded by that assessment; but they fail to state, in their answer, that this assessment was erroneous in any respect. If the reapportionment of the cost of the improvement of the avenue was made according [268] to the former opinion of this court, and made equally upon all the property owners on each side of the avenue, it is immaterial to appellants when it was made, and their complaint with reference thereto is without merit. The only other question presented for reversal is a question of estoppel of appellee from asserting a lien upon the property of appellants; they being innocent purchasers for value. By section 2834, Ky. St. 1903, it is provided that a lien shall exist.for the cost of original improvement of public ways against the respective lots abutting thereon, and by section 2839 this lien shall exist from the date of the apportionment warrant. Appellants contend, however, that appellee is estopped from asserting this lien against their property, for the reason that it collected the amount first apportioned and assessed against their property and caused the lien to be released. This court, in its former opinion, determined that the first apportionment of the cost of the improvement of Rosewood avenue was a nullity, and directed another apportionment to be made. It follows, therefore, that the statutory lien existed when the second apportionment was made, and the collection of the first apportionment warrant did not have the effect to release the lien. Appellants knew that Rosewood avenue had been improved by original construction, and that there was a lien against the abutting lots to secure the payment of the cost, and they .were presumed to know that it was a lien upon the property until the cost was legally assessed against it and paid by the owner thereof. If appellants have paid the purchase price for this [269] property, they have recourse for the amount of the assessment against their vendor on her warranty. For these reasons, the judgment is affirmed.