City of Georgetown v. Hambrick

104 S.W. 997, 127 Ky. 43, 1907 Ky. LEXIS 110

• Court: Court of Appeals of Kentucky
• Decided: November 1, 1907
• Status: Published

Opinion

Opinion op the Court by

Judge Hobson

Affirming- -

About the year 1888, appellee’s husband, who- then owned property on the south side of Bourbon street, in Georgetown, between Hamilton and Mulberry, put down a curb and built for part of the front a sidewalk four feet wide. The street was in the outskirts of the town and was 30 feet wide. He devised the property to appellee, and she began in the year 1906 the construction of a pavement four feet wide within the .curb for the entire front of the property. The city council notified her'not to build it, and, she declining to recognize the notice,- it filed this suit to-en join her building the sidewalk: On final hearing* the circuit court dismissed the , proceeding, and the city appeals.

The street was dedicated for ordinary street purposes, and it must be presumed the parties contemplated it was to be used in the usual way. In ordinary city streets there is a carriage way in the center and sidewalks on the side. The sidewalks is as necessary as the carriage way, and both, are equally within the contemplation of the parties in the dedication. The city council, .under its power to regulate and control the streets, may fix the width of the carriage way or the sidewalks, or determine how much space shall be given to each; but it cannot say that the whole street shall be used as a carriage way, and that no part of it shall be used as a sidewalk. The owner of the abutting property is entitled to have a reasonable space for sidewalk, and the council cannot act arbitrarily. It can determine what is reasonable space, but in so doing it must exercise a fair judgment. If it fails to give a reasonable space for sidewalks, and the proof is such as to show arbitrariness, the property holder is not without remedy.

In this case the city council has not hy ordinance defined the space in the street to be used as a carriage way or what may be used as a sidewalk. It does not appear that the sidewalk the defendant is constructing unreasonably interferes with the use of the street. It is within the curb put there in 1888 and is only four feet wde. There is therefore no ground for interference by the' chancellor. If, as the evidence tends to show, the street is too narrow for the increasing public needs if sidewalks are built in it,, the remedy of the city is to widen the street by condemning pTOperty for this purpose if it cannot agree with the owners as to the matter.

Judgment affirmed.