peals, and seeks a reversal both as to the | Barrett avenue there was no dedicated or validity of the ordinance and the apportion- principal street within the distance of an ment warrant issued against his property, ordinary city block, and council, in its orand the finding of the chancellor against him dinance, fixed the assessment district at a on his cross-petition against Nancy Jane point 252 feet west of Barrett avenue. This Birch. figure was adopted upon the assumption that this distance would be halfway between Barrett avenue and a street which would in the future be opened to the east thereof and at a distance of 504 feet from Barrett avenue. The validity of this ordinance and apportionment was contested, and, upon consideration here, were held to be invalid. The court said: "Assessments should be made in accordance with the facts existing at the time, and cannot be properly based upon speculation as to what will occur in the future." To the same effect are Cooper v. Nevin, 90 Ky. 85, 13 S. W. 841, 11 Ky. Law Rep. 875, Nevin v. Roach, 86 Ky. 492, 5 S. W. 546, 9 Ky. Law Rep. 819, and City of Louisville v. Selvage, 106 Ky. 730, 51 S. W. 447, 52 S. W. 809, 21 Ky. Law Rep. 349, 620. [1] On the west side of Bayly avenue, the territory is defined into squares by principal streets, whereas on the east side of Bayly avenue the territory is not so defined, unless Birchwood avenue is a public way or street, for the distance from Bayly avenue to the first public street or road east of Bayly avenue is about 2,400 feet, a distance greatly in excess of the length of a city block. Council, in the draft of the ordinance, for this improvement, treated Birchwood avenue as though it were a public way or street, although in the ordinance it is referred to as a private way. There is no evidence in the record showing that this Birchwood avenue has ever been dedicated to the public as a street, or accepted or recognized by the city as such, although it is undoubtedly in its appointments equipped as well, if not better, than most of the public streets in the city. Still, the fact that it is highly improved cannot make of it a public street or way, if no steps have been taken to dedicate it to the public use. Defendant in his pleading denies that it is a public way, and there is no evidence whatever supporting the position of the plaintiff to the contrary. With the record in this condition we are constrained to hold that Birchwood avenue has not been shown to be a public way or street. A similar question arose in Nevin v. Roach, 86 Ky. 492, 5 S. W. 546, 9 Ky. Law Rep. 819. In that case it was shown that a street known as Madison, while improved, had not in fact been dedicated to the public use, or accepted by the city, although the owners contemplated so dedicating it at the time. It was held, upon consideration here, that the fact that it had been improved and that the owners intended to dedicate it to the public use was not sufficient, the court saying: "But it has never been accepted by the city, and therefore the case must be considered without regard to such a street, and it was not in existence when the improvement was ordered and the contract entered into, or when the work was completed." [2] To the east of Bayly avenue the property is not divided or defined into squares by principal streets, and we have a case where the property on one side of the street is defined into blocks or squares by principal streets, and on the other side it is not. This identical question has likewise been before this court in the case of Preston v. Roberts, 12 Bush, 570, which arose out of the original construction of Barrett avenue in the city of Louisville. Brent avenue was a dedicated street lying to the east of Barrett avenue, and the assessment district was fixed at a piont midway between Barrett avenue In City of Louisville v. American Standard Asphalt Co., 125 Ky. 497, 102 S. W. 806, 31 Ky. Law Rep. 133, the litigation arose over the original construction of Rosewood avenue. The ordinance providing for its construction treated the territory on both sides of said avenue between Baxter and Von Borries avenues as being divided into squares by principal streets. The court found that the next street, running parallel with Rosewood avenue on the east, was 1,500 feet from Rosewood avenue; that this was too great a distance to be treated as a city square; and that, therefore, the assessment district should extend east of Rosewood avenue only to the same distance that it extended to the west thereof. In disposing of the question, the court said: "Now, what is the requirement of the charter in a case like this: Here the territory on the west side of the improvement was defined into squares, then under the express language of the charter the tax district on that side must be one-half the depth of the squares, and, this being true, the tax district on the east side can only be the same depth. This is necessary to comply with the requirements of the law of equality of burden. Preston v. Roberts, 12 Bush, 584; Cooper v. Nevin, 90 Ky. 88 [13 S. W. 841, 11 Ky. Law Rep. 875]. The general council have no more discretion in fixing the tax district for the east side than they have for the west side." The opinions in these cases are couclusive of the rights of the parties here. The ordinance correctly defined the boundary of the assessment district on the west side of Bayly avenue, and the territory to the east of Bayly avenue, not being divided or defined into squares by principal streets, the ordinance should have limited the assessment district on the east side of Bayly avenue to a line running the same distance therefrom that the assessment line on the words, if the line C-D is 250 feet from Bayly | viding for the improvement, nor the letting avenue, the line A-B should be a like dis- of the contract, that burdens the property tance therefrom. with its share of the cost of the improvement, but it is the improvement itself for which the property is held answerable. The lien must attach at some time, and this the statute provides shall exist from the date of the apportionment warrant. Now, although, at the time of the conveyance by Mrs. Birch to appellant, the improvement had been ordered and the contract let, the work had not, in fact, been done, and the contractor, under the broadest and most liberal construction that could be placed upon his contract, had, at the time of this purchase by appellant, no claim whatever upon this property for anything; and hence there was no incumbrance upon the property for which his vendor is in any wise answerable, and the chancellor correctly so held. [3] As to the second proposition, the statute provides that the cost of the construction must be apportioned to all of the property within the assessment district. The claim is that certain property lying within this district was omitted from assessment. This contention is not seriously denied, but it is insisted that a portion of the property so omitted belonged to appellant, and that to assess it for its proportionate share of the cost would increase, rather than diminish, the burden of taxation as to him. This contention, however, is based upon the idea that the assessment line lying to the east of Bayly avenue, as fixed in the ordinance, is correct; but since it has been determined that this assessment line is not correct, and under a correct assessment not nearly so much of appellant's property will He within the assessment zone, we are unable to determine whether the assessment of this omitted property would be beneficial or harmful to him. However, inasmuch as the case must be reversed for other reasons, it is unnecessary to enter into a consideration of this question. When the assessment zone has been properly fixed, as above indicated, and the cost of the im-1. provement is apportioned to the property in said zone, the statute should be strictly complied with and all of the property lying within said zone made to bear its just proportion of the cost. This disposes of the questions raised in the litigation between the contractor and the appellant, Long. . [4] As to the claim asserted by appellant against Nancy Jane Birch, we are of opinion that the ruling of the chancellor thereon was correct. Cases might arise where a distinction can be drawn between an incumbrance and a lien, but in the case under consideration there is no incumbrance until there is a lien. They are identical or synonymous, for the reason that, until the apportionment warrant is issued, there is no lien; and, in the absence of a lien, there is no incumbrance. The property is never liable for any part of the cost of the improvement until the apportionment warrant is issued. The right of the city to impose upon abutting property the cost of the original construction of a street is one of purely statutory origin. The owner of the property is not liable, in any event for the cost of the improvement, but the property itself is placed in lien therefor. This lien does not attach until the apportionment warrant has been issued. Until this has been been done, the property cannot be said to be incumbered or burdened with any part of the cost of the improvement, for the reason that the burden has not been laid upon it. It is not the ordinance pro Judgment reversed as to the contractor, Barber Asphalt Paving Company, and affirmed as to appellee, Nancy Jane Birch. BOARD v. LUIGART et al. (Court of Appeals of Kentucky. Nov. 27, 1912.) LANDLORD AND TENANT (§ 274*)—RENT— DISTRESS-REMEDIES FOR WRONGFUL DIS TRESS. The remedies for wrongful distress for Code Prac. § 653, both of which require the rent prescribed by Ky. St. & 2303, and Civ. tenant to execute a forthcoming bond for the property distrained, are not exclusive; Ky. St. § 2310, providing a remedy by replevin, section 7 providing remedy by action without bond, and the common law affording a similar remedy. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1154-1166; Dec. Dig. 8 274.*] 2. LANDLORD AND TENANT (§ 274*)-RENT- 3. SHERIFFS AND CONSTABLES ($ 139*) DISTRESS-LIABILITY-DOUBLE An officer who executes an illegal distress warrant or writ of attachment is liable only for the actual or market value of the property wrongfully seized or sold under the writ, and cannot be mulcted in double damages. [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. 88 297-307; Dec. Dig. § 139.*] 4. LANDLORD AND TENANT (§ 274*)-SHERIFFS AND CONSTABLES (§ 137*)-WRONGFUL DISTRESS-NATURE OF ACTION. A petition in an action to recover damages for the illegal seizure and sale of household goods distrained for rent, averring that plaintiff occupied the premises under an agreement to pay a stipulated sum per month, which sum was to be derived from an illicit business to be conducted in the premises, that during the last months of the tenancy plaintiff derived no in come from the premises, and hence, no rent was | house and lot in question, which the appellee due for which distress would lie, and that, de- J. P. Embree, a constable of Fayette county, spite this and the fact that the property distrained was exempt, the principal defendant illegally instigated and caused the defendant constable to unlawfully distrain plaintiff's property which, being illegally sold at public auction, was purchased by the principal defendantstates a cause of action both at common law and under the statute as against the principal defendant and an action at common law against the constable for wrongful seizure and sale of the property distrained, the gist of the action not being to recover damages for a malicious suing out of the distress warrant, or for the malicious prosecution of a civil action. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1154-1166; Dec. Dig. § 274; Sheriffs and Constables, Cent. Dig. 8 280-289; Dec. Dig. § 137.*] Appeal from Circuit Court, Fayette County. Action by Lucy Board against Gustave Luigart and others. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded. R. S. Crawford and J. H. Minogue, both of Lexington, for appellant. J. A. Edge, of Lexington, for appellees. SETTLE, J. This is an appeal from a judgment of the Fayette circuit court sustaining a demurrer to, and dismissing, appellant's petition, in an action to recover damages for the alleged illegal seizure and sale of her household goods under a distress warrant wrongfully issued for rent. at the instigation and direction of the appellee Luigart, illegally levied upon the household goods, kitchen furniture, piano, and other property belonging to appellant described above, and thereafter, on the 13th of November, 1911, over the objection of the appellant, illegally sold same at public auction, at which sale the appellee Luigart became the pretended purchaser at the price of $225, a sum greatly less than its actual value; that the property was then reasonably worth $1,250, and the whole thereof was exempt from distress for rent and also from sale under execution, which fact was at the time well known to the appellees Luigart and Embree as before its distraint, and again, before the sale thereof, they were both so notified by appellant, and that she claimed it as exempt property. It is also alleged in the petition that appellant is now and was at the time of the seizure and sale of the property mentioned a bona fide housekeeper and person with a family, consisting of herself and four infant children; that she had no provisions, including breadstuffs and animal food, to sustain her family for one year or any part of that time; that practically all the property sold by appellees under the distress warrant consisted of articles which, under section 1697, Kentucky Statutes, were and are exempt from The petition, as amended, admits the execution and distress for rent, and should renting by appellant of a house and lot in have been specifically set apart to her as a the city of Lexington from the appellee Gus- person with a family; and that to the retave Luigart, and alleges that it was, with mainder she was and is entitled under the his knowledge, occupied and maintained by section, supra, in lieu of the provisions for her as a bawdyhouse, and that for the use the support of herself and family for the thereof he was to receive from her $60 per year, which she did not own or have on month, payable out of the proceeds or in-hand, and which remainder was not of value come derived from the illicit business she equal to $40 for each member of the family. was to conduct therein; that she did, pursuant to the contract with the appellee Lulgart, occupy and maintain the premises as a house of ill fame from some time in the year 1907 down to and including the month of July, 1911, during which time she paid to him a large part of the income derived from its maintenance as a house of ill fame, and all the rent that was due him thereon to the end of July, 1911; and that though she continued to occupy the property for some months after July, 1911, she neither paid nor owed him any rent upon the property for these months, as she derived no income thereon from the illicit business for which it was rented. It is further alleged in the petition that she was and is the owner of a lot of household goods, kitchen furniture, piano, and other personal effects, an itemized list of which is filed with and made a part of the petition; that in November, 1911, the appellee Luigart wrongfully caused to be issued a distress warrant against appellee for rent alleged to be due him from her for the [1, 2] It is stated in the brief of counsel for appellant that the demurrer to the petition was sustained on the ground that appellant's only remedy against the distress warrant was the executing of a bond and presenting her defense to same as pointed out by section 2303, Kentucky Statutes, and that she could not by an action, as here attempted, recover of appellees damages for the illegal seizure and sale of her property. On the other hand, it is contended by counsel for appellees that the demurrer was sustained, because, in the opinion of the circuit court, the only remedy of the tenant in such a case is to execute the bond provided for by section 653 of the Civil Code, and make defense to the distress warrant when judgment is sought by the landlord on the bond; and that a judgment in favor of the tenant in a proceeding on the bond referred to is a prerequisite to the latter's right to sue to recover damages for the illegal seizure and sale of her property. Neither of these propositions is sound. As to the first, it is sufficient to say that section 2303, party to whom the bond is executed shall move the court for a judgment thereon against the obligors, as provided in section 654, Civil Code, "make defense upon the ground that the distress was for rent not due in whole or in part or was otherwise 11legal; or, if the property was levied upon, that it was by statute exempt from the levy; and may make any defense, by way of set off or counterclaim that is allowed by the Code in actions." The remedy thus provided by sections 653 and 654 of the Civil Code is not, however, exclusive. The tenant may not be financially able to give the bond, or he may not wish to do so, and prefer by action to recover damages for the illegal seizure and sale of his property under the distress warrant, as al Kentucky Statutes, applies solely to attach- | be given by the tenant, he may, when the ments for rent, and, under its provisions, a person in possession of the property attached for rent may, as allowed by section 214, Civil Code, execute bond to the effect that the property or its value shall be forthcoming and subject to the order of the court on the trial of the attachment, or the defendant in the attachment may, as allowed by section 221, Civil Code, execute the bond therein mentioned to perform the judgment of the court, and thereby obtain a discharge of the attachment and restitution of any property taken under it or of the proceeds thereof, leaving the attaching landlord to his remedy on the bond. If the bond be given under section 214, Code, it is only an obligation for the forthcoming of the property; but, if given under section 221, its effect is to discharge the attachment, and to re-lowed by section 7, Kentucky Statutes, which move the attached property from the custody of the court and its officers. In a proceeding to enforce the payment of the bond given under section 221, neither the sufficiency of the grounds of attachment nor the liability of the property levied upon can be inquired into. On the other hand, the execution of the bond provided for by section 214 does not prevent the person giving it, or any claimant of the property, from setting up his claim thereto and resisting the grounds of attachment when judgment is attempted to be obtained on the bond; indeed, section 29, Civil Code, makes it his duty to assert his claim or make his de fense. In the event the distress warrant is issued in behalf of the landlord for rent the tenant may replevy the amount demanded as provided by section 2310, Kentucky Statutes, which would prevent him from making any defense to the distress warrant, or he may execute the bond allowed by sec provides: "If property be distrained or at- It will be ob The the statute, bring a common-law action for tion 653, Civil Code, which provides: "If an officer levy or be about to levy a distress warrant upon any property, the tenant, his assignee or under tenant may exercise, with one or more sufficient sureties, to be approved by the officer, a bond to the party in whose favor the warrant issued, to the effect that he will pay to such party the amount of the rent specified in the warrant, with ten per cent. thereon, if the property be of the value of the rent so specified; or, if it be of less value, that he will pay to such party the value thereof, and ten per cent. thereon. For the purpose of taking this bond the officer shall cause the property to be appraised as is provided in section 646. The appraisement shall be annexed and referred to in the bond. Upon the giving of the bond, the levy, if one have been made, shall be discharged, and the bond and [4] The petition in the instant case ap warrant shall be returned to some justice pears to state a cause of action both at the of the peace of the county, if the amount common law and under the statute as against claimed do not exceed fifty dollars; and, if the appellee Luigart; but the facts alleged, it exceed that sum, to the clerk's office of if established by evidence, will also authorthe circuit court of the county." If the ize a recovery against the appellee Embree, [3] The officer who executes the attachment or distress is only responsible in any event for the actual or fair market value of the property wrongfully seized or sold under the writ. in a common-law action, for the wrongful | 2. TAXATION (§ 363*)—MODE OF ASSESSMENT -NOTICE OR DEMAND. seizure and sale of the property distrained, namely, its fair market value when sold. An assessment of taxes by the county board of supervisors, without notice to the taxpayer, is void. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 603-606; Dec. Dig. § 363.*] Appeal from Circuit Court, Estill County. Tie Company against A. M. Durbin, Sheriff. Clarence Miller, of Irvine, for appellant. Yet another remedy, in addition to those mentioned, that of suing for a recovery of the specific property taken under a distress warrant, is afforded the tenant by section 33, Civil Code, which provides: "An action to recover the possession of specific personal property taken under a distress warrant, if it be brought by the tenant, or his assignee or under tenant, may be against the party who sued out the warrant; and the property claimed in such case may, under an order | Riddell & Friend, of Irvine, for appellee. for its delivery, be taken from the officer who seized it, if he have no other claim to hold it, other than that appearing from the warrant. The indorsement of the levy on the property made upon a warrant by the officer holding it, shall be a sufficient taking of the property to sustain an action against the party who sued out the warrant." Section 31 allows such an action by the tenant against the officer taking the property; and section 32 the substitution of the plaintiff in the writ for the officer sued, upon the application either of the plaintiff or defendant, in the distress warrant. The present action is not, as appellees' counsel seem to think, one to recover damages of appellees for a malicious suing out of a distress warrant, or for the malicious prosecution of a civil action, which can only be maintained after a judgment has been rendered determining that the property seized and sold was not subject to distraint. It is simply an action to recover damages for the wrongful issuance of the distress warrant and the wrongful seizure and sale of appellant's property thereunder, upon the grounds that the appellee Luigart was not entitled to the rent claimed, and that the property seized and sold under the distress warrant was exempt under the law. It follows from what we have said that in sustaining the demurrer to the petition the circuit court erred. Wherefore the judgment is reversed and cause remanded, with directions to the circuit court to overrule the demurrer, and for further proceedings consistent with the opinion. HOBSON, C. J. The Ohio Valley Tie Company is a corporation, having its principal office and place of business in Glendeane, Breckinridge county, Ky. It bought a number of ties on Station Camp creek and its tributaries, which it floated down to Irvine, and there loaded them on the cars by means of a hoist which it maintains. It failed to give in a list of its property to the assessor as of September 1, 1908. The county board of supervisors, in January following, made an assessment of its property at $11,500. The sheriff demanded payment of the taxes, and was about to enforce collection by a levy when it brought this suit to enjoin the collection of the taxes, on the ground that the assessment was void. On a final hearing of the case, the circuit court perpetuated the injunction. The sheriff appeals. The facts of the case, as shown by the record, are these: Previous to 1904 the Dean Tie Company was in business in Estill county. In that year, however, it went out of business, and was succeeded by the Ohio Valley Tie Company. The board of supervisors, after making the assessment referred to, adjourned for a week, and directed notice to be given to the persons against whom assessments had been made. A notice was sent to the Dean Tie Company of an assessment against it. This notice was received by a man named Scrivener, who, a month or more afterwards, gave it to the general manager of the Ohio Valley Tie Company. This was the first notice that he had of the assessment by the board of supervis ors, and it was some time after the board had adjourned. He then went before the county court and moved that court to exonerate the company from the assessment; DURBIN, Sheriff, v. OHIO VALLEY TIE but the county court refused to entertain the CO. (Court of Appeals of Kentucky. Dec. 6, 1912.) 1. TAXATION (§ 611*)-REVIEW-FINDING OF CHANCELLOR-SUFFICIENCY OF EVIDENCE. Evidence, in an action to enjoin a collection of taxes, held sufficient to support a finding that the owner had no notice of the assessment made by a county board of supervisors. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 88 1242, 1245-1257; Dec. Dig. & 611.*] motion or allow any entry to be made of it. Thereupon this suit was brought. The company offered to pay the taxes upon the property which it in fact had in the county, excluding from the assessment the ties it owned, which were in transit through the county. The circuit court enjoined the collection of the excess of the taxes over and above the amount which the company ad mitted it owed. |