City of Jackson v. Buckley

Stevens, J.,

delivered the opinion of the court.

The city of Jackson exhibited its bill of complaint against the appellee to enforce an assessment and lien for special improvements for street paving, under sec-. tions 3431 and 3412, Code of 1906. There was an answer and cross-bill and the cause was submitted to the chancellor upon bill, answer, and cross-bill, answer' to the cross-bill, agreed statement of facts, and certain testimony. This is one of a series or number of cases between the city of Jackson and the abutting property owners on North State street between Manship street and Euclid avenue. The first case submitted to the court was that of Sharks v. City of Jackson reported in 118 Miss. 502, 79 So. 67. The Sparks Case was appealed from an order overruling a demurrer to a bill of complaint in all material respects similar to the bill of complaint in. the' present case. There was an agreed statement of facts effective in all these North State street paving cases. This statement is as follows:

“It is agreed by and between W. E. Morse and the city of Jackson and Green & Green, attorneys for Mrs. Agnes Buckley, that the following constitutes a statement of facts in all the paving cases on North State street between Manship street and Euclid avenue.

“The ordinance declaring the work .necessary passed June 6,1911, as found in M. B. L., page 95, and was duly published in the Clarion-Ledger for three weeks according to law. The ordinance directing the street commissioner to advertise for bids was passed July 4, 1911, found in M. B. L., page 127. This was advertised according to law. On August 1, 1911, the grade was established. This is found in Mí. B. L., page 150. This was advertised in the Clarion-Ledger according to law. The ordinance relating" to special assessment, etc., was passed August 1, 1911, and is found in M. B. L., page 150. This was duly advertised according to law.

“Plans and specifications were adopted and the street commissioner was directed to give notice to the property owners on August 1,1911, and is found in M. B. L., page 151. This was duly published according to law. Notices by the street commissioner, J. M. McLeod, were actually given or posted between the dates of the 23d day of August, 1911, and the 11th day of September, 1911. On September 5, 1911, M. B. L., page 185, there was an amendment to the plans and specifications. This amendment was published September 15, 20, 291, and October 1, 1911. •

“At the time of the amendment there was a contract entered into by and between'the city of Jackson and the Jackson Light & Traction Company, in which contract the city agreed to release the street car company from paving North State street from Manship street to Euclid avenue. This was based on the consideration of the settlement of certain litigation pending between the parties. This contract was passed September '5', 191.1, found in M. B. L., page 171 et seq. This was duly published in the Clarion-Ledger on September 20, 29, and October 1 and 4,1911.

“The street commissioner was directed to do the work on October 3, 1911. See M. B. L., page 185. Report of the street commissioner was made May 7, 1912. See M. B. L., page 298; both of which were published according to law. An' ordinance to carry into effect the ordinances of the city of Jackson in respect to paving on North State street from Manship street to Euclid avenue, and to carry into effect the contract between the city of Jackson and the Creosote Wood Block Company, was duly passed May 7, 1912, and advertised in the Daily News, May 16, 1912. Special assessment against property owners, under sections 3411 and 3412 of the Code of 1906, was levied May 7, 1912, M. B. L., page 305 et seq. This was advertised in the Daily News, May 17, 1912.

“At the time the city contemplated paving this portion of North State street Messrs. Watkins & Watkins and R. P. Willing got up a petition asking that this part of the street be paved. No mention was made of the material, but at the time the petition was presented Mr. A. C. Crowder, the mayor, informed Mr. Watkins that it would probably be necessary to eliminate the paving of the street car line as the company at that time was in bad financial condition. Mr. Watkins, while not representing the property 'owners, stated that he thought this would be all right. Later Messrs. Watkins & Watkins represented the'Creosote Wood Block Company at the time they put down this paving on this street.

“There is no item of maintenance charged against the property owners. The city does not attempt to collect for lead pipe connections placed under the streets by the city, although the same was assessed-as a separate item but along with the paving and curb.

“The work actually started on or about--1911; the street being graded all the way across. None of the property owners protested against the laying of the paving. If they did, they did not put it in writing. Neither was there a majority protesting against the paving as it was actually laid. No one appealed from the assessment.

“The section of the street which was unpaved washed badly, and especially upon the hillsides. The dirt having washed out from the track left a low place in the middle of the street about six inches lower than the paved street. It was practically impossible for a team or ear to pass from one side of the street to the other side of the street on the hillside. There was, however, crossing provided at each intersection of the street.

“The wood block paving did not prove as satisfactory for hillside paving as the council had thought when they accepted the bid of the wood block paving company, the plans and specifications of which were on file in the office of the city engineer at the time notice was served. The plans and specifications were identical with the ones finally carried out, with the exception of the amendment which eliminated the street car area from being paved. The wood block when it was first put down exuded creoSote; and if one walked in the street the creosote would stick to the feet. After the sun had baked a largepart of the creosote out of the wood blocks the blocks would buckle after ¿- rain, and in some places where the earth had been washed away from the car track it caused the curb to be pushed in toward the car track.

“There was no taking of her property, or that of any other party interested in this suit, or whose case depends upon the decision in this case.”

In addition to this statement there were introduced in evidence certain ordinances and depositions of witnesses. There was a decree for the property owner dismissing the bill of complaint, and from this final decree the city appeals. >

The so-called cross-bill makes prominent thé contention that the street was paved with creosoted wood blocks; that the work was improperly done in pursuance of a defective plan; that there was a material departure fro.m the original plans and specifications, in that the center of the street occupied by the Jackson Light & Traction Company, a street railway concern, was eliminated from the paving plans; that the center so eliminated operated to gather up the water which runs down hill along the car tracks and by appellee’s property and prevents passage from one side of the street to the other; that the wood blocks at first exuded creosote and rendered the paving sticky to one’s feet, and subsequently the blocks would buckle in places, and it is alleged that the paving proved unsuitable for hillside paving and damaged the property of the defendant and cross-complainant.

The contentions on this appeal may be classified or grouped under tire general propositions: (1) That the plans and specifications were changed, whereby the street car track between Manship street and Euclid avenue was eliminated, and the effect of this change was and is a fundamental variance and operates to impose upon the abutting owners an improvement which they did not originally ask for and against which they had no opportunity to protest; (2) that the improvement was never sufficiently decribed and the ordinances sufficiently complied with; (3) that the paving was unsatisfactory and a positive damage to the abutting owners.

While there is an effort to discriminate the issues in the case before us from the legal questions presented in Sparks v. City of Jackson, 118 Miss. 502, 79 So. 67, we are unable to see any real difference 'between these cases. It is true the Sparks Case was submitted on a demurrer to the bill, but all legal questions raised in the instant case were raised and argued in the Sparks Case. It only remains to determine whether the facts support the cross-bill of the appellee or differentiate the present case from the Sparks Case, and whether appellee has availed herself of the remedy prescribed by law. We conclude that upon the law and the facts the final decree in this case must be reversed. It is agreed that the appellee made no protest ,and prosecuted no appeal from the order of the municipal authorities making the special assessment under attack. In Union Savings Bank & Trust Co. v. City of Jackson, 84 So. 388, decided April 10, 1920, headnote No. 4 reads as follows:

“Section 22, chapter 260, Laws 1912, giving the right of appeal from a special assessment made after notice to property owners, by municipal authorities with right to trial on such appeal, is exclusive, and, if no right is taken, the assessment is final and binding on the owner.”

This is a recent pronouncement of this court, but whether upon this ruling and this ruling alone we could base a reversal of the present case we need not determiné The notice in the case at bar was served in 1911, before the enactment of chapter 260, Laws of 1912.

Appellee attempted to present a cross-bill claiming by' way of offset certain alleged damages to her property. It might be well to say that we find no.merit in the“cross-action. The final decree in this case makes no. express disposition of the cross-bill. But under the pleadings and facts the cross-bill presents neither a defense nor just cause for affirmative relief. It is not a case where the city contracted for asphalt and thereafter accepted at the hands of the contractor a different paving, such as creosoted wood blocks. The only contract which the city let was a contract for creosoted wood blocks.^ There was no fundamental variance between the contract and the work actually done and accepted. There is testimony that the wood block paving exuded creosote when the blocks were new, and afterwards to some extent buckled in places.

The general question as to whether defects-in the work constitute a defense to an assessment for a local or public improvemjent is discussed and the authorities set forth in case noté to People ex rel. Raymond v. Whidden (Ill.), 56 L. R. A,. 905. The present action is one to foreclose a lien on appellee’s property, and in the absence of fraud the general rule of law is well settled that where the work has been done the municipality must be the judge as to whether the contract has been complied with.

In Church v. People ex rel., 174 Ill. 366, 51 N. E. 747, the court quoted with approval from Judge Cooley in his work on Taxation, as follows:

“In general, no defense to an assessment that the contract for work has not been performed according to its terms is allowed. But this doctrine must be confined within the proper limits. It cannot be extended to cover a case in which the authorities, after contracting for one thing, have seen fit to accept something different in its place, for, if this might be done, the statutory restraint upon the action of local authorities in these cases would-be of no more force than they should see fit to allow. ’ ’'

This, we think, announces the true line of demarcation. The general contention that the original plans called for paving from curb to curb, whereas the city by proper ordinances changed the plans and eliminated a strip of neutral ground in the center of the street occupied by the railway company, presents no legal defense. This point was expressly ruled against the contentions of the property owner in the- Sparks Case. There is no element of fraud in the case at bar. The failure to pave the space between and near the street car tracks did not affect the right of the city to require the abutting property owner to pave one-third of the street directly in front of his property. Cyc., vol. 28, p. 1111, and footnotes & and 7. Notice to the property owner was duty served, and from all the Mississippi authorities pertaining to special or public improvements we can see no fundamental error in the proceedings here under attack, and no good reason why the bill of complaint was by the learned chancellor dismissed. It follows that the decree in this particular case must be reversed, the bilk of complaint sustained, and the cross-bill dismissed, and the case remanded for appropriate proceedings enforcing the lien of the city.

Reversed and remanded.