Caperton v. Humpick

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

Appellee Humpick, a contractor, brought this action to enforce a lien on certain land to pay for improvement of what is called Breckinridge street, between Underhill and Yine streets, done by him under an ordinance of the General Council of Louisville. The land assessed to pay for the improvement, and upon'which the lien is claimed, is composed of quarter squares between Breckinridge and Caldwell and Dupuy streets, situated north, and between it and Lampton and Yine streets, south. And the only issue that seems to be involved, or that counsel argue, is whether that part of Breckinridge so improved is a public street.

It appears that James Guthrie owned aud devised a body of land, within boundary of which are the improvement and also the quarter squares, to his daughters, Ann A. Caldwell, Sarah J. Smith and Mary E. Caperton.

It further appears that, December 30, 1869, the three devisees, their husbands uniting, divided the land and executed deeds of partition. The various parcels .allotted and conveyed to each partitioner were described and bounded in the deeds by streets and alleys, all those streets mentioned, including Breckinridge, being designated by name, as were other parallel streets, north and *108 south of Breckinridge, as well as streets that intersected it. There was also made and recorded with the deeds a map of the entire tract devised, called and recognized in each deed as “ Guthrie’s Southeastern enlargement to the city of Louisville.” Upon that map is shown not only the relative position of the various streets, alleys and squares within the boundary of the original tract, but each block or square appears to have been subdivided into lots that are numbered. We therefore think the intention to dedicate Breckinridge, as well as all the other streets referred to, for use of the public would be manifest but for the following clause contained in each deed: “But it is distinctly understood and agreed between the parties to these deeds that the calls and descriptions of streets and alleys herein contained, so far as such streets and alleys have not been heretofore opened and established, shall not be construed, as between the parties hereto of the one part and the city or the public of the other part, to be a dedication of such streets and alleys so not heretofore opened or established. But said property is now-laid off by squares and blocks bounded by said so called streets and alleys, as shown in the plat herewith recorded and as herein called for, for the convenience of fair and equal divisions and in anticipation of the extension of the city to the lands herein described; and as between the parties they' shall be severally entitled to use the said spaces called streets and' alleys as outlets and easements in the proper use and enjoyment of their several parcels.” Although the streets within boundary of the original tract that had previous to the partition been opened and established were not designated in the deeds, we will assume that Breckinridge street was not one of them. *109 But the division was made and partition deeds executed in evident anticipation that all the streets and alleys would in time become subject to use of the public; and besides, it was manifestly understood by the partitioners that a sale and conveyance by any one of them of a lot or parcel of the land would give to the vendee and, as a necessary consequence, to the public, use of the street or alley upon which such lot or parcel might ahut.

The improvement of Breckinridge street, for which plaintiff in this case seeks payment, was made more than twenty years after execution of the deeds of partition; and in the meantime the city had extended to and even beyond the original tract; each one of the partitioners had sold and transferred title and possession of many lots within boundary thereof; cisterns and wells had been made at expense of the city in streets even farther out than where the improvement in question was made; and a bridge over South Beargrass, where Breckinridge street crosses it, had been erected at a cost of $40,000 to the city, whereby a convenient outlet from lots, not before existing, was afforded, benefit of which appellants have for several years enjoyed.

It is, however, argued by counsel that inasmuch as during the progress of the improvement appellee was notified by appellants they would not pay or contribute to pay therefor, he is not now entitled to any compensation. But no objection was made to construction of the bridge and approaches to it, nor does it appear that appellants have declined to use either it or the improvement of Breckinridge street, full benefit and enjoyment of both which they and their vendees have and will continue to have. If Breckinridge was not at the time a public street, *110 then the contractor wbo built the bridge as well as appellee who made the improvement were simply trespassers', and appellants might have, by legal proceedings, stopped construction of botlr, and it seems to us good faith, required tbem to do so, if they did not intend to abide by and avail themselves of the benefit thereof, and thus impliedly dedicate the street if not directly.

In our opinion the facts and circumstances of this case are such as to imply a dedication of Breckinridge between Underhill and Vine streets, and to impose upon appellant the duty of paying for the-improvement.

Judgment affirmed.