Petition eor Rehearing.
(188 Pae. 711.)
Original opinion modified on rehearing and decree rendered. Reversed. Decree Rendered.
Mr. R. S. Hamilton, for the petition.
Mr. O. H. Foster, contra.
McBRIDE, O. J.In his able and ingenious brief upon the petition for rehearing, counsel for plaintiff renews his attack upon the sufficiency of the notice of the proposed improvement. This notice, which is quoted in the original opinion, states that the improvement will be made in accordance with the plans and specifications on file in the office of the city engineer, and thereby these plans and specifications were imported into the notice and became a part thereof, to the same extent as if they had been particularly described and set forth at large therein. These plans and specifications are before ns and are exactly in accord with the work as performed; the retaining wall being shown in detail thereon.
It is claimed that the testimony of Mr. Wagoner, a former city engineer, shows that the old curb placed in front of plaintiff’s premises was placed there by authority of the city, and that the narrowing of the pavement to 24 feet, instead of 34 feet, constitutes a change of the plan of improvement, and that plaintiff’s predecessor having complied with the requirement of the original plan, plaintiff cannot be again assessed because of a change in the nature of the improvement.
*6034. There is nothing 'in the evidence to show that, prior to the present improvement, the street had ever been.improved or ordered to be improved by the city; nor that any plan of improvement had been theretofore adopted by the city. No previous ordinance declaring any intention to improve the street, or notice of such intention, were introduced and, presumably, none exist. The width to which the street might be paved in the future was necessarily a matter of mere speculation, so far as the city engineer was concerned, and no authority is shown to have existed in him to fix the location of the old curb. He and plaintiff’s predecessor in interest made a guess as to the width to which the council would improve the street, and the guess proved a wrong one.
So far as the record or testimony outside of the record is concerned, there is nothing to show that the old curb was constructed by any mandate of the city, or that its construction was other than a mere voluntary act. In addition to this, had the present improvement been extended to the width of 34 feet, so as to comply with the then existing curb, the additional paving, at the rate at which the contract was let, would have cost plaintiff about $20 more than the cost of constructing a new curb.
5. It is also suggested that the retaining wall extends laterally two feet on each side over and upon private property, and the testimony indicates that such may be the case. Whether this was with the consent of the owners of such property does not appear. The .extra expense of this extension beyond the exterior line of the street, so far as this plaintiff is concerned, is, comparatively, infinitesimal. No specification of this objection is made in the complaint, and it only crops out incidentally in the testimony. At the most *604it would not furnish ground for declaring the whole improvement invalid, but, in equity, it would entitle the plaintiff to an abatement of so much of his assessment as went into that part of the structure, which is beyond the exterior boundaries of the street. A careful computation places this amount at the sum of $16. It is evident that this reduction was not the object of the suit, and that in every substantial particular the plaintiff is defeated here.
In consideration of the premises the decree of the Circuit Court will be reversed, and a decree entered here, declaring the assessment against plaintiff’s property valid to 'the extent of $566.74, and directing the city to proceed to collect that sum, as upon an original assessment for that amount. Defendant will recover its costs and disbursements in the lower court and neither party will recover costs and disbursements in this court.
Original Opinion Modified. Decree Rendered.
Bean, Johns and Bennett, JJ., concur.