Atlantic Coast Line R. Co. v. Town of Ahoskie

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Atlantic Coast Line R. Co. v. Town of Ahoskie, 134 S.E. 653, 192 N.C. 258 (N.C. 1926)
• Decision Date: 06 October 1926
• Docket Number: 100.
• Parties: ATLANTIC COAST LINE R. CO. v. TOWN OF AHOSKIE.

134 S.E. 653

192 N.C. 258

ATLANTIC COAST LINE R. CO. v. TOWN OF AHOSKIE.

No. 100.

Supreme Court of North Carolina

October 6, 1926

Appeal from Superior Court, Hertford County; Cranmer, Judge.

Action by the Atlantic Coast Line Railroad Company against the Town of Ahoskie. Judgment for defendant, and plaintiff appeals. Reversed.

The plaintiff railroad company owned a parcel of land in the town of Ahoskie, containing about 1 1/2 acres, and lying between Main street and First street in said town, which was used by it as a freight and passenger depot. The town of Ahoskie paved a street from Main street to First street across the property claimed by the railroad. The railroad property did not extend the whole distance between Main and First streets but was a block of land between these two streets. The town claimed a public street running from Main street to First street across the property of the railroad. After paving the property the town levied an assessment against the railroad as an abutting owner. The railroad resisted the confirmation of the assessment on the ground that it was not an abutting owner for the reason that a large portion of the paving was entirely upon its own property. However, the town proceeded to confirm the assessment. It is conceded that the amount of the assessment is correct and that the assessment was properly computed.

Acting under C. S. § 2714, the railroad appealed from the confirmation of the assessment and duly filed a statement of facts upon which it based its appeal. Among other things, it is alleged in the statement of facts that:

"The said Railroad street, so-called, for the paving of which said Atlantic Coast Line Railroad Company is assessed, as above specified, does not at any point abut the property of the said railroad company, but is for a considerable distance, to wit, 480 feet on the southerly side of said alleged street and 430 feet on the northerly side thereof entirely on the land and property of Atlantic Coast line Railroad Company, which said company owns in fee simple. *** That the town has never acquired the right to use said strip of land it calls Railroad street as a street or public highway, either by condemnation, prescription or other lawful manner, etc. *** That the said town did not have any lawful right to use appellant's land as a street or public highway."

There was another allegation that the railroad had protested before the work was done.

Upon appeal to the superior court at the conclusion of evidence the trial judge, "being of the opinion that the title to the property paved cannot be litigated in this proceeding, and that respondent railroad company is therefore liable for assessment made by the town owners, allows motion of the town to dismiss the exceptions and appeal."

From this judgment plaintiff railroad appealed to the Supreme Court.

F. S. Spruill, of Rocky Mount, and V. E. Phelps, of Wilmington (Thomas W. Davis, Gen. Sol., of Wilmington, of counsel), for appellant.

Ehringhaus & Hall, of Elizabeth City, and W. W. Rogers and L. C. Williams, both of Ahoskie, for appellee.

BROGDEN J.

This appeal involves the validity of an assessment against the property of the plaintiff railroad by the defendant town. The plaintiff asserts that the assessment is illegal because it is the owner of the larger portion of the property between Main and First streets, and the town has not acquired title thereto. The town contends that the question of ownership cannot be determined in an appeal from the confirmation of the assessment under C. S. § 2714, but that the plaintiff must resort to an independent action for the value of the property so taken.

Two propositions of law are involved in this case: First, is the assessment valid? Second, can the validity of the assessment be challenged in an appeal from the confirmation thereof, as provided by C. S. § 2714?

An assessment "as distinguished from other kinds of taxation, are those special and local impositions upon the property in the immediate vicinity of municipal improvements which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived therefrom." Black's Law Dictionary; Raleigh v. Peace, 110 N.C. 32, 14 S.E. 521, 17 L. R. A. 330. It is a creature of the statute and its validity must flow from the statute which authorizes it. Raleigh v. Peace, supra; Greensboro v. McAdoo, 112 N.C. 361, 17 S.E. 178; Morganton v. Avery, 179 N.C. 551, 103 S.E. 138.

So that, in order to determine the validity of an assessment, it is necessary to examine the statute under which it is laid. The underlying theory upon which a valid assessment is based is that a local improvement has been made by a municipality, and that the property of all abutting owners derives a benefit therefrom, for which they should be compelled to pay. The assessment in this case is laid for the improvement of an alleged street called Railroad street. Our statute, C. S. § 2703, defines a street improvement as follows: "'Street improvement' includes the grading, regrading, paving, repaving, macadamizing and remacadamizing of public streets and alleys," etc.

The petition, which is the jurisdictional foundation of the improvement, under the statute, must be signed "by a majority in number of the owners who must represent at least a majority of all the lineal feet or frontage of lands *** abutting upon the street or streets, or part of a street or streets proposed to be improved." The next stage of the proceeding is the resolution by the governing authority of a municipality, "which shall designate by general description the report to be made and the street or streets or part or parts thereof where the work is to be effected," etc.

Therefore, under our statute, one of the essential requisites of a valid assessment is the existence of a public street or alley.

It is admitted that all of the requisites of a valid assessment appear except the one requiring the existence or establishment of a public street. The defendant contends that the property improved was a public street, and the plaintiff contends to the contrary. This was a fact to be established by evidence. An assessment, under the express language of our statute, implies the existence of a public street. If no public street existed, then no assessment can be legally laid upon abutting owners.

The second question involves the consideration of whether or not the disputed...