Embry v. City of Caneyville

397 S.W.2d 141, 1965 Ky. LEXIS 65
CourtCourt of Appeals of Kentucky
DecidedDecember 17, 1965
StatusPublished
Cited by2 cases

This text of 397 S.W.2d 141 (Embry v. City of Caneyville) 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
Embry v. City of Caneyville, 397 S.W.2d 141, 1965 Ky. LEXIS 65 (Ky. Ct. App. 1965).

Opinion

STEWART, Judge.

These consolidated condemnation proceedings against seven property owners seek to acquire approximately 238 acres of land to provide the City of Caneyville with a water reservoir and a recreational area. The proceedings were begun in the Grayson County Court, pursuant to an enabling ordinance. The county court entered an order on August 1, 1964, appointing commissioners, who on the same day filed their reports as to each parcel taken. On August 24, 1964, it was adjudged the City of Caney-ville had the right to condemn the land of the seven property owners upon payment of the commissioners’ awards.

Appeals were taken to circuit court by the City of Caneyville and the seven landowners. The circuit court declared the city had the right to condemn the property sought by it. The actions were then continued on the docket for jury trials “on the assessment of damages alone.” This order was finalized by compliance with the requisites of CR 54.02. On the appeal to this Court the seven cases are consolidated since the questions raised are common to all.

Appellants’ first contention is that the City of Caneyville is not a duly incorporated municipality of the sixth class; therefore, it does not possess the legal right [142]*142to condemn their lands. To refute this assertion appellee has filed as an addendum to its brief a copy of Chapter 950 of the 1880 Acts of the General Assembly of Kentucky, entitled “An Act to charter the town of Caneyville, Grayson County.” This bill was enacted by the General Assembly on April 9, 1880; it was ordered to take effect from its passage; and the Act has never been repealed. “ * * * Generally, the courts regard an act which incorporates a municipal corporation as a public act, whether declared to be so or not, and will take judicial notice of such act without proof. * * *” See 20 Am.Jur., Evidence, sec. 36, p. 60. Under KRS 422.010 (1)all courts in Kentucky shall take judicial notice of all acts and resolutions of the General Assembly. See also 81.010(6) which assigns to Caneyville sixth class status.

Appellants’ second contention is that in Kentucky a municipality of the sixth class is not empowered to condemn land outside its city limits for the purpose of constructing a municipal water reservoir thereon. Appellee claims that under KRS 96.350(1) and KRS 106.010 a sixth-class city may build a reservoir on land it purchases beyond its boundaries.

It should be pointed out that under the first statutory provision, KRS 96.350(1), a sixth-class city may “purchase, establish, erect, maintain and operate waterworks,” but there is no authority for a sixth-class city to condemn land. The power of condemnation is specifically given, however, by KRS 106.010, which reads:

“Any water district * * * or any city of the second, third, fourth, fifth or sixth class may, by purchase or by condemnation, acquire, establish, erect, maintain and operate waterworks, together with extensions and necessary appurtenances thereto, and including both real or personal property within or without the corporate limits of the said water district or city, for the purpose of supplying the water district or the city and its inhabitants thereof with water.” (Emphasis added.)

KRS 96.350(1) authorizes the acquisition and operation of a waterworks but nowhere does this subsection expressly employ the words “water reservoir.” As KRS 106.010 is also phrased in terms of a waterworks project, the question that may be raised is whether “waterworks,” as used in this statute, encompasses the establishment of a “water reservoir.” Since this statute authorizes a sixth-class city to “acquire (by purchase or condemnation), establish, erect, maintain and operate waterworks, together with extensions and necessary appurtenances thereto,” it would seem to be, and we hold it is, sufficiently broad in its meaning to embrace a water reservoir.

Appellants’ third contention is that cities of the sixth class do not possess the right to condemn land outside the city limits for recreational use. Appellee maintains that KRS 97.010(1) plainly enables it to establish this type of facility either inside or outside its city limits. This subsection reads:

“The acquisition, development, maintenance and operation of parks, playgrounds and recreation centers is a proper municipal purpose for all cities and counties. The legislative body of any city or the fiscal court of any county may dedicate for use as parks, playgrounds and recreation centers any lands or buildings owned or leased by the city or county and not devoted to an inconsistent public use and may acquire real property for such purpose by purchases, lease, condemnation or otherwise, at any place reasonably accessible to the inhabitants of the city or county and either within or without the boundaries of the city or the county.” (Emphasis added.)

Appellants admit this statutory provision purports to confer upon “all cities” the right of condemnation for the purpose of providing parks, playgrounds, and recrea[143]*143tion centers, “either within or without the boundaries of the city.” Notwithstanding the bestowal of such a broad power by the phraseology of KRS 97.010(1), appellants assert that because KRS 97.257 and KRS 97.540 expressly give this power only to first-and third-class cities, a specific grant of like power to sixth-class cities was withheld by the Legislature. If this Court were to uphold appellants’ view it would render KRS 97.010(1) completely inapplicable to a sixth-class city. We gather no such intent from the language of this statutory provision. We agree with appellee’s reasoning on this point, namely, that when the Legislature gave first- and third-class cities a special right to condemn land for recreational use it did not intend to leave KRS 97.010(1) completely ineffective and meaningless as regards all other classes of cities.

Appellants’ fourth and final contention is that appellee has failed to show any real necessity for condemning their land. This argument is premised on the erroneous conclusion that appellee had the burden of proof and did not sustain it.

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Bluebook (online)
397 S.W.2d 141, 1965 Ky. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/embry-v-city-of-caneyville-kyctapp-1965.