Alford v. McKenzie

Court of Appeals of Kentucky

Alford v. McKenzie

9 Ky. Op. 506, 1877 Ky. LEXIS 297

DecidedJune 20, 1877

StatusPublished

This text of 9 Ky. Op. 506 (Alford v. McKenzie) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alford v. McKenzie, 9 Ky. Op. 506, 1877 Ky. LEXIS 297 (Ky. Ct. App. 1877).

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Opinion

Opinion by

Judge Cofer:

This case is, in nearly all respects, like that of Elrod v. Henderson, the seventh case preceding this. The same issues were made or attempted, and we need not notice here such points as were passed upon in that case.

The evidence conduces to prove that Twenty-sixth street is fifty feet wide, and shows clearly that it is forty feet. Assuming that it is only forty feet appellants’ counsel claim that the owners of adjacent property cannot he legally compelled to pay the cost of the work, because a greater proportion of the street is covered by the carriageway than is authorized by the ordinances.

The special ordinance directed that a carriageway 33 feet wide should be made, and the work was done in accordance with that ordinance. A general ordinance provides that, unless otherwise provided by the ordinance directing the work to be done, the carriageway in street's forty and less than sixty feet wide shall be two-thirds the width of the street from curb to curb. If Twenty-sixth street is but 40 feet wide the carriageway should, according to the general ordinance, have been 26 feet 8 inches, instead of 33 feet, and there is left for sidewalks only 7 feet, instead of 13 feet 4 inches. [507]*507And it is contended that as the carriageway as made extends on to ground which, under the general' ordinance, should have been reserved for sidewalks, the special ordinance and contract were illegal and the property owners are not liable.

C. H. Gibson, R. J. Elliott, for appellants. W. Muir, G. B. Eastin, for appellees.

By the express terms of the general ordinance it is only applicable when different provisions are not made by the special ordinance, and as that was done in this instance we fail to perceive that the general ordinance in any way affects this case. But if it did it could not avail the appellants, because they have made no issue upon which to raise the question.

When written pleadings are required the rule is that the facts constituting a cause of action or defense must be stated in the petition or answer, and that facts not pleaded will be unavailing, although they may be well established by the evidence. That the allegata et probata must agree is a rule as applicable to street improvement cases as to any others. The width of the street it not stated, and evidence respecting its width was irrelevant.

The judgment must therefore be affirmed.

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Opinion by

Judge Cofer:

This case is, in nearly all respects, like that of Elrod v. Henderson, the seventh case preceding this. The same issues were made or attempted, and we need not notice here such points as were passed upon in that case.

The evidence conduces to prove that Twenty-sixth street is fifty feet wide, and shows clearly that it is forty feet. Assuming that it is only forty feet appellants’ counsel claim that the owners of adjacent property cannot he legally compelled to pay the cost of the work, because a greater proportion of the street is covered by the carriageway than is authorized by the ordinances.

The special ordinance directed that a carriageway 33 feet wide should be made, and the work was done in accordance with that ordinance. A general ordinance provides that, unless otherwise provided by the ordinance directing the work to be done, the carriageway in street's forty and less than sixty feet wide shall be two-thirds the width of the street from curb to curb. If Twenty-sixth street is but 40 feet wide the carriageway should, according to the general ordinance, have been 26 feet 8 inches, instead of 33 feet, and there is left for sidewalks only 7 feet, instead of 13 feet 4 inches. [507]*507And it is contended that as the carriageway as made extends on to ground which, under the general' ordinance, should have been reserved for sidewalks, the special ordinance and contract were illegal and the property owners are not liable.

C. H. Gibson, R. J. Elliott, for appellants. W. Muir, G. B. Eastin, for appellees.

By the express terms of the general ordinance it is only applicable when different provisions are not made by the special ordinance, and as that was done in this instance we fail to perceive that the general ordinance in any way affects this case. But if it did it could not avail the appellants, because they have made no issue upon which to raise the question.

When written pleadings are required the rule is that the facts constituting a cause of action or defense must be stated in the petition or answer, and that facts not pleaded will be unavailing, although they may be well established by the evidence. That the allegata et probata must agree is a rule as applicable to street improvement cases as to any others. The width of the street it not stated, and evidence respecting its width was irrelevant.

The judgment must therefore be affirmed.

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Bluebook (online)

9 Ky. Op. 506, 1877 Ky. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alford-v-mckenzie-kyctapp-1877.