Dedicated for the purpose of creating Yoakum Avenue in the Town of DeQuincy *Page 517 was a strip of ground seventy feet wide. The governing authority of the municipality, however, as was its privilege, did not utilize that entire width in constructing Yoakum Avenue's paved roadway, curbing, guttering, and sidewalks, all of which are considered to be parts of the street. Rather the street as it was actually improved, being that which is situated between the outer edges of the two sidewalks, measures only thirty-eight feet six inches. Thus there remains unused and unimproved thirty-one feet six inches of the dedicated land, one-half of which, or fifteen feet nine inches, lies on each side of the completed street between the outer edge of the sidewalk and the property line. The Town of DeQuincy does not contemplate the improving of these fifteen feet nine inch strips for street purposes at any time in the future, this being indicated by the record and by the argument of counsel representing the municipality.
The paving of the street in question (including the roadway, sidewalks, etc.) was performed under the authority of Act No. 92 of 1934. According to the title and Section 1 of that statute, the municipality is authorized "to levy and collect local or special assessments on the real property abutting suchimprovements, sufficient in amount, to defray the total cost of said works * * *." Section 6 provides that the governing authority "shall adopt an ordinance levying a local or special assessment on each lot or parcel of real estate abutting thestreet, road, sidewalk or alley *Page 518 to be improved * * *." On giving these provisions a liberal construction, as must be done (Section 17), it is clear to my mind that the Legislature intended the assessment to affect only property that actually abuts or adjoins the land on which the municipality has placed, or seriously contemplates placing, the street paving improvements (roadway, sidewalks, etc.). In the instant case, as above pointed out, the Town of DeQuincy never expects to pave the fifteen feet nine inches of ground lying between the outer edge of the completed street (the outer edge of the sidewalk) and defendant's present property line. Therefore, in my opinion, until that unused portion of ground is released by the municipality from the dedication, defendant's real estate (assuming that the fifteen feet nine inches of land will become part thereof on its abandonment) cannot be considered, under the language of Section 6 of the statute, as "abutting the street, road, sidewalk or alley to be improved," and is not liable for the assessment.
I do not agree with the observation made in the majority opinion that the phrase "abutting the street" used in the statute means abutting the street as dedicated for the purpose of a street. Such a construction, I think, is entirely too broad. Suppose certain landowners decide to create a new residential subdivision within a municipality, and in subdividing their property and in preparing an official plat they make formal dedication for the principal thoroughfare therein of a strip of ground *Page 519 one hundred fifty feet wide. Later, the governing authority of the town approves and provides a paved street (roadway, curbing, sidewalks, etc.) only thirty-eight feet in width (considering it to be sufficient for all times), thus leaving unimproved one hundred twelve feet of the dedicated land, one-half of which or fifty-six feet lies on each side of the improvements or between the outer edge of the sidewalk and the property line. Can it be correctly said, in this situation, that the real estate located beyond this fifty-six feet of unused ground "abuts such improvements"? Clearly it can not. To abut, according to Webster's New International Dictionary, means "to touch, as contiguous estates, along a border or with a projecting part."
The majority opinion states that it is customary in residential districts of all municipalities, and particularly of the small towns like DeQuincy, to leave some space between the paved sidewalk and the property line. I seriously doubt the correctness of this statement. Nothing in the record sustains it; no citations are given in aid of it; and I have no personal knowledge of a custom of that kind.
The majority opinion further states: "The construction which we adopt is that which prevails in other jurisdictions with reference to similar statutes." In support of this statement, there is cited Vol. 1, Words and Phrases, Perm. Ed., "Abut, Abutting," as well as the cases listed therein *Page 520 of City of Joplin ex rel. v. Freeman, 1907, 125 Mo.App. 717,103 S.W. 130 and City of Cincinnati v. Batsche, 1895, 52 Ohio St. 324,40 N.E. 21, 27 L.R.A. 536.
The City of Joplin case involved an assessment made for sidewalk paving. The law authorized the City Council to levy a special assessment upon lots abutting on the sidewalks. Defendant contended that his lots did not abut upon the sidewalk as constructed, because a space of about one foot (not fifteen feet nine inches as in the instant case) intervened between it and his property line. The court held that "the law [has been] substantially complied with."
The City of Cincinnati case is clearly inapplicable to this controversy. In it the court simply held that where a strip of ground from one side of a street is appropriated for the purpose of widening such street, the lots and land fronting on the opposite side of the street at the part widened are considered as abutting on the improvement. The case did not involve, as does the instant matter, an unsued portion of ground lying between the sidewalk and the property line.
Pertinent here are Panfil v. City of Detroit, 1929, 246 Mich. 149,224 N.W. 616, and Davidson v. Salt Lake City, 1932, 81 Utah 203,17 P.2d 234, neither of which is cited in the majority opinion. In the former the City of Detroit condemned certain property for street purposes, but it did not need the entire width so taken. After *Page 521 the completion of the improvements (paved roadway and sidewalks) there remained unused between the sidewalk and plaintiff's property line a strip of land seven and one-half feet wide. With reference to this intervening ground the court commented [246 Mich. 149, 224 N.W. 617]:
"* * * The material question here presented is how much of lot 78 is actually included within the limits of McGraw avenue. It is true that the whole lot was condemned for street purposes. But, if in fact the northerly 7 1/2 feet of this lot is held by the city for other than street use, then plaintiffs' property is not adjacent to McGraw avenue and is not subject to the pavement or sidewalk assessment. * * *
"If this was city land held for park purposes between the plaintiffs' land and McGraw avenue, it was an intervening parcel, and plaintiffs' property could not be held to be that of an adjoining owner, and therefore under the city charter would not be subject to assessment for the paving or sidewalk constructed on McGraw avenue. Jend v. City of Detroit, 243 Mich. 108,219 N.W. 620.
"* * * Surely if the city owned the property which was located between the plaintiffs' lot and McGraw avenue and held it for other than street use, the plaintiffs are not owners of `abutting or adjacent real estate,' which under the provisions of the Detroit City Charter is liable to assessment for a pavement or sidewalk constructed on McGraw avenue." *Page 522
In Davidson v. Salt Lake City [81 Utah 203, 17 P.2d 235], the defendant, in connection with its undertaking to improve University Street, acquired a five foot strip of land lying between plaintiff's property and that street. The deed recited: "The above described land is to be used by said city for street purposes." Notwithstanding this provision of the deed, the strip was not used for street purposes, and, as a consequence, it was held that plaintiff's property did not abut University Street. The court observed:
"* * * If the city can thus make the property owner 5 feet back from the street an abutter, it may likewise do so with one situated any distance from the street."
Of some importance here is the decision in Jacob v. Mayor and Board of Trustees of City of New Iberia, 163 La. 416,112 So. 30, which the majority opinion seeks to distinguish from this case. The property of the plaintiff therein had a frontage originally on Duperier Street of one hundred seventy-five feet. When paved, however, that street was curved away from plaintiff's property, and there remained in the old street an unimproved plot triangular in shape. As disclosed by the record of that proceeding, especially the maps therein, the intervening triangular plot resulted in a part of plaintiff's property being situated away from the paved roadway various distances ranging from about thirty-five feet, at the farthest point, to less than five *Page 523 feet. In seeking to enforce collection of the assessment for the new paving levied against the plaintiff's property, the city contended, just as the Town of DeQuincy urges with respect to the instant property, "that the triangle constitutes a neutral ground merely, and that to all intents and purposes plaintiff's property actually fronts upon the paved roadway." But this court, ruling in favor of the property owner and holding that the intervening triangular plot prevented his land from abutting the paving, answered the contention as follows:
"We are unable to hold that the strip in question constitutes a neutral ground. It is, undoubtedly, the property of the city, which may use or dispose of it in any lawful manner it sees fit. It has had the effect of depriving the greater portion of plaintiff's property of a frontage on the street, thereby making ingress and egress more difficult. It injures rather than benefits the property of plaintiff.
"The judge of the district court is familiar with the locality and the conditions. With full knowledge of all the facts and circumstances of the case, he has relieved plaintiff from paying for the pavement in front of the triangular portion of ground belonging to the defendant municipality. From our examination of the record, we are unable to hold that he erred in so doing."
If, according to the majority holding herein, the land in question located fifteen *Page 524 feet nine inches from the sidewalk (improved street) is to be treated as property "abutting such improvements," why would not land situated twenty-five feet away be treated likewise? Or thirty-five feet? or fifty feet? Or one hundred feet? At what distance does it cease to be abutting property?
One of the basic reasons for making the abutting property liable for the paving of streets and sidewalks is that it is benefitted and its value enhanced by the improvements. In this case, however, defendant's property could well be materially damaged by the fifteen feet nine inches of ground (owned by the Town of DeQuincy) lying between it and the sidewalk. Over this strip, supervised by the municipality, he is required to maintain suitable means of ingress and egress. The accomplishment of this, should the governing authority of the town not cooperate fully with him, might be a difficult and expensive operation. Moreover, defendant's property would materially diminish in value if the town refrains from keeping this comparatively large strip clear of weeds, trash, stagnant water, etc., an obligation not imposed on it by the street dedication.
For these reasons I am of the opinion that defendant's property does not presently abut the improvements made by the Town of DeQuincy and it cannot be held liable for the paving assessment until and unless the fifteen feet nine inches of *Page 525 by the Town of DeQuincy or otherwise, a ground becomes, through an abandonment part and parcel of it.