Belknap v. City of Louisville , 93 Ky. 444 ( 1892 )

JUDGE LEWIS

DELIVEBED THE OPINION OF THE COUBT.

Appellants, about sixteen in number, owners respectively of lots or parcels of land in Jefferson county, brought this action October 27, 1890, against the city of Louisville, and D. E. Murphy, city assessor, for a judgment defining and fixing one of the boundary lines of the city so as to exclude and free from municipal taxation their several lots, which they allege are included by a line incorrectly run and claimed by the city, and thus illegally made subject to such taxation, and enjoining Murphy assessing them for taxation.

March 9, 1868, “An Act to extend the boundary line of the city of Louisville,” was passed by the Legislature, whereby the city boundary was set out and defined, that part of it now in controversy being thus described : The place where the disputed line begins, the parties agree, is at intersection of a line drawn from Shipp avenue 210 feet south, and one from Third street 210 feet west; and it runs according to call of the statute, “thence southwardly and parallel with Third street to the south line of the House of Refuge lands, and following-the boundary of said land to Shipp avenue.”

The House of Refuge land appears to have been at that time a tract of about eighty acres, the title of which was in the city of Louisville, and there is no dispute about the location of the south line thereof. Third street, the general course of which is south from the Ohio river, at date of the act of 1868 terminated at Shipp avenue, the general course of which toward Third street appears from the surveyor’s map filed to be southwest; and a line 210 feet south of and parallel with it was by the act made part of the city boundary.

To run the line in dispute strictly according to the call is impossible, because Third street did not then extend south beyond Shipp avenue. But there was at that time a thoroughfare called “ Third Street Road,” the course of which, however, is about south 10° 50' west, instead of the general south, course of Third street, and the line claimed by the city of Louisville runs parallel with that road, leaving the several lots of appellants within the corporate limits. But that line does not strike the south line of the House of Refuge land; instead, it extends beyond the southwest corner of that land, and is made to intersect at less than a right angle an imaginary line thereof extending beyond the corner. The line claimed by appellants, if run parallel with a line of Third street extended the proper distance, would strike the south line of the House of Refuge land. But it is argued by counsel of appellees, with some plausibility, that if it had been intended the line should be so run, language clearly indicating such purpose would have been used, as in every other case where a line is made by the statute to extend beyond the termination of an existing street, and parallel with such street extended, the needed expression was used.

The indirect and circuitous course of the city boundary from where it leaves Shipp avenue indicates an intention of the .Legislature to include within the city limits the House of Refuge land; yet if the line is fixed as appellants claim, a very considerable part of it will be excluded, while a comparatively small part is outside the line claimed by appellee.

We thus have a condition of uncertainty as to the proper direction one of the boundary lines of a city shall run, necessarily subject to a dispute between the parties interested, and determinable |only by authoritative construction of the statute.

We do not see why in such case a practical interpretation, adopted and acted on by the lot-owners as well as the city more than twenty years, should not now be given by the court. Such has been the doctrine held by other courts. (Milne v. Mayor, 13 La., 69 ; Hamilton v. McNeil, 13 Grat., 389; People v. Farnham, 35 111., 562.) In this case it does not clearly appear by whose authority the line was established in pursuance of the act of 1868. But by an act approved March 3, 1870, it was provided that the boundaries of the city of Louisville should remain, as then established until changed by law; and by the same act the general council was required to cause a map to be made of the entire city within the boundary fixed thereby, with streets, avenues, lanes, roads and all other public ways laid out by actual survey, showing the extension thereof to the boundary line with regular squares. Such map was made as required by the act, and according to it the disputed line was laid down as now claimed by appellee, and so as to include the lots of appellants. They have ever since, until this action was commenced, acquiesced in the boundary so defined and fixed, enjoying whatever benefits were thereby conferred and submitting without protest to burdens imposed. Moreover, though there is nothing in the record before us authorizing more than a presumption that the Legislature intended by the act of 1870 to provide that the line, precisely as now claimed by appellee, should remain as then established; still, by subsequent statutes, the boundary as shown by the •city map was recognized as the actual and legal boundary^ and by an act passed in 1884 property was directed to b& ■assessed according to maps of the city. There then exists more than mere legislative construction of the act of 1868; for direct legislative authority was, after that date, given for assessing the lots of appellants for taxation, to enjoin which was the prime object of this action.

We are therefore of opinion the boundary line claimed by appellee has been fully and legally established. Judgment affirmed.