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City of Hazard v. Main Street Realty Co.

May 22, 1953



CULLEN, Commissioner. The City of Hazard brought an action against the Main Street Realty Company to enforce the lien of a special assessment levied against property owned by the realty company, for a proportionate part of the cost of resurfacing Main Street in Hazard. Evidence was heard by the court, without a jury, and judgment was entered dismissing the action. The city appeals.

Although the court did not give the reasons for its decision, it appears that the court accepted one or both of the defenses asserted by the realty company, which were: (1) The resurfacing project did not constitute an improvement, for which abutting property could be assessed, but merely constituted a repair of the street; (2) the street had been taken over by the State Highway Department as part of the primary road system, and the city therefore had lost its authority to improve the street. The city maintains that neither defense is sustainable.

The portion of Main Street here involved had been paved with concrete in 1923, at the expense of abutting property. In 1950, the city passed an ordinance for the resurfacing of this portion of Main Street, and several other streets, with blacktop or bituminous hot mix in two layers of an overall thickness of three inches. There is some dispute in the evidence as to the condition of the concrete pavement of Main Street at the time the ordinance was passed, the evidence for the city being that there were numerous cracks and patches in the street, and the evidence for the property owner being that the street was in excellent condition with the exception of one or two repaired spots where the concrete had been taken up to install utility lines.

The resurfacing work was undertaken under the provisions of KRS 94.291 to 94.325 (chapter 165, Acts of 1950), which authorizes the 'improvement' of streets at the expense of abutting property. In KRS 94.010(2), 'improvement' is defined as 'original construction or substantial reconstruction, as distinguished from repair', and it is provided that 'street improvement' embraces the construction and reconstruction of streets, including grading or regrading and paving or repaving'.

Under KRS 94.294 it is provided that when one complete street improvement has been made at the cost of abutting property owners, no assessment against property owners for 'further improvement' of that street, other than a widening project, may be made for a period of 15 years.

As an initial proposition, merely construing the statute, we would have no difficulty in concluding that the resurfacing of a concrete street with three inches of asphalt constitutes an 'improvement.' It is observed that the statute defines 'improvement' as embracing construction or reconstruction work of a character distinguished from repair. Ordinarily the word 'repair' carries the connotation of restoration Webster defines 'repair' as meaning 'to restore to a sound or good state after decay, injury, dilapidation, or partial destruction.' It is quite clear in the case before us that the purpose of the resurfacing was not to patch or restore the street to its former condition, but rather to improve the street and place it in a better condition than it was originally.

In other jurisdictions it has been held almost uniformly that the placing of a new asphalt surface on a concrete base constitutes reconstruction rather than repair. Fuchs v. City of Cedar Rapids, 158 Iowa 392, 139 N.W. 903, 44 L.R.A.,N.S., 590; McCaffrey v. City of Omaha, 72 Neb. 583, 101 N.W. 251; Wright v. City of El Reno, 168 Okl. 594, 35 P.2d 473; Field v. City of Chicago, 198 Ill. 224, 64 N.E. 840; 48 Am.Jur., Special or Local Assessments, sec. 47, p. 603; 63 C.J.S., Municipal Corporations, ยง 1312(a), pp. 1053, 1054; annotation, 44 L.R.A.,N.S., 593, 594.

Some doubt concerning the correctness of our interpretation of the statute might be raised by an examination of the opinion in City of Covington v. Bullock, 126 Ky. 236, 103 S.W. 276, in which it was held that where a street originally consisted of an asphalt surface over a concrete base, and the original asphalt surface was removed and completely replaced by a new asphalt surface, the replacement work constituted a 'repair' for which abutting property could not be assessed. However in later cases, particularly Kimbley v. Hickman, 163 Ky. 713, 174 S.W. 484, and Southern Bitulithic Co. v. Sweeney, 195 Ky. 577, 242 S.W. 846, it was held that similar replacement of an asphalt surface constituted original construction or reconstruction as to property owners who had not been assessed in the first instance, for the cost of the original street.

It would appear that the rationale of these cases was that the abutting property should be assessed once, but not more than once, for the cost of a street improvement. Under the present statute, KRS 94.294, the policy has been laid down that abutting property may be assessed for improvements at least once each 15 years. In the case now before us, some 27 years elapsed between the improvements. In view of the statute, the original assessment made 27 years ago disappears as a factor to be considered, and the situation may be considered the same as if no original assessment had been made. Therefore, the Hickman and Sweeney cases may be considered applicable.

We have no doubt under the evidence that the resurfacing work in the instant case was of the character of an improvement, in fact, and it is our opinion that it was an improvement within the meaning of the statute.

As previously noted, the second defense of the property owner was that the city had no power to improve Main Street because the street had been taken over by the State Highway Department as part of the primary road system.

Under KRS 177.041, it is provided that when a city street has been designated as part of the primary road system, 'the future maintenance, repair, construction and reconstruction of such streets shall be done by the Department of Highways'. However, KRS 177.043 provides that the Department of Highways 'may' maintain and repair, construct and reconstruct such city streets, and may enter into contracts with cities for that purpose. KRS 177.044 provides that before constructing or reconstructing a street by the department the plans must be approved by the city. KRS 177.045 prohibits the department from constructing, reconstructing, repairing or maintaining a street until the city has deeded to the department all right of ways it owns upon the street.

In 1942 the City of Hazard entered into a contract with the Department of Highways, following designation of Main Street in Hazard as part of the primary road system. Under the contract the department agreed to maintain the street, and further agreed, 'in the event it is found necessary by the Department of Highways to construct or reconstruct' the street, to pay the cost of construction or reconstruction. Another clause of the contract recited that 'it is agreed and understood that the Department of Highways, its agents, servants and employees, or its contractors, are acting only as the agent of the city in the construction or reconstruction of said streets.' The contract required the city immediately to convey to the department all right of ways owned by the city upon the street, but at the time the resurfacing work here in question was done such a deed had not yet been executed.

Shortly before the resurfacing work on Main Street was done, the Highway Department had undertaken a bypass project on another street in Hazard, costing $750,000. The mayor testified that the department had indicated that it would be some period of time ...

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