145 F.2d 725 (4th Cir. 1944), 5288, Southern Ry. Co. v. City of Orangeburg

Docket Nº:5288.
Citation:145 F.2d 725
Case Date:November 11, 1944
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 725

145 F.2d 725 (4th Cir. 1944)




No. 5288.

United States Court of Appeals, Fourth Circuit.

November 11, 1944

Page 726

Adam H. Moss, of Orangeburg, S.C., and Frank G. Tompkins, of Columbia, S.C., for appellant and cross-appellee.

Hugo S. Sims, of Orangeburg, S.C., for appellee and cross-appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This action was brought by the City of Orangeburg against Southern Railway Company for the foreclosure of a paving assessment lien. The District Judge rendered a judgment for the plaintiff for the amount of the assessment, $6, 925.67, with simple interest at 6% from January 15, 1927, 55 F.Supp. 167 and 171. The Railway Company appealed from the entire judgment and the city appealed from so much thereof as allows simple interest only.

The case was first instituted in the Court of Common Pleas for Orangeburg County, South Carolina, and later removed to the District Court. A jurisdictional question was raised and decided for the plaintiff. See 134 F.2d 890. The case is now before us on the merits.

The Railway Company resisted the enforcement of the assessment on the grounds: (1) That the assessment was invalid because under the South Carolina law, such an assessment can be imposed only on the written consent of a majority of the owners of the property abutting on the street to be improved, and such consent was lacking in this case; (2) that the improvement for which the assessment was levied was of no appreciable benefit to the Railway Company; and (3) that the limitation for the collection of the assessment had expired by lapse of time under the provisions of the ordinance of the City of Orangeburg which authorized the levy.

On the first ground, the Railway Company undertook to show that although the petition for the improvement purported to be signed by a majority of four out of seven abutting property owners, the majority was obtained only by dividing the tract of one property owner into three parcels and conveying two of them to different grantees, who were not bona fide owners but held them solely to create the false impression of ownership until the improvement was finished, when the two parcels were reconveyed to the real owner.

On the second ground the Railway Company undertook to show that it had received no benefit from the pavement because the Railway's abutting land consisted of its narrow right of way approximately 3, 000 feet long and from 105 to 169 feet wide, traversed by a high fill, ditches and drains, so that the available land was too small for any use other than railroad purposes which were in no way furthered by the new improvement. The case was said to be similar in essential respects to that decided by this court in Carolina & N.W. R. Co. v. Town of Clover, 4 Cir., 46 F.2d 395, where it was held that an assessment for the pavement of a road which paralleled the Railway's right of way did not benefit the Railway in any way and therefore could not be enforced.

These questions are important and would call for careful examination if we were not satisfied that the lien of the assessment, even if originally valid, cannot now be enforced against the Railway Company because the pending suit was not brought until after the expiration of the five year period during which the lien was continued and kept alive by the terms of the assessment ordinance. The ordinance in question was passed by the City Council of Orangeburg on July 12, 1918, pursuant to the authority contained in Art. X, Section 16 of the Constitution of South Carolina of 1895 and Act No. 345 of the General Assembly of the State of 1915, Act March 11, 1915, 29 Stat. at Large, p. 586. Section 16 of Article X of the Constitution empowers the General Assembly of the State to authorize the corporate authorities of the City of Orangeburg to levy assessments upon abutting property for the purpose of paying for permanent improvements on streets, on the written consent of a majority of the owners of the abutting property, and on condition that the corporate authorities pay at least one-third of the total cost. Act No. 245 of the...

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