Cabaniss v. City of Huntsville

• Decision Date: 07 June 1928
• Docket Number: 8 Div. 937
• Citation: 217 Ala. 678,117 So. 316
• Parties: CABANISS v. CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

117 So. 316

217 Ala. 678

CABANISS v. CITY OF HUNTSVILLE.

8 Div. 937

Supreme Court of Alabama

June 7, 1928

Appeal from Circuit Court, Madison County; James E. Horton, Judge.

Appeal of Fannie S. Cabaniss to the circuit court from an assessment against her property, fixed by the city council of Huntsville under an improvement ordinance. From a judgment for plaintiff (City of Huntsville), defendant appeals. Affirmed.

The refusal of requested instructions covered by those given is not error.

Statement by SOMERVILLE, J.:

The appeal is from a judgment of the circuit court confirming and fixing an assessment made by the city of Huntsville against appellant's property on account of street improvements.

The improvement ordinance provided for "a 24-foot driveway along the center line of Randolph street or Randolph avenue from the east property line of Lincoln street to the west line of the common intersection of Randolph street or Randolph avenue and Second avenue and Sixth street," and that the driveway should be paved with asphaltic concrete paving, sheet asphalt paving, Warrenite bitulithic paving one course Portland cement concrete paving, vertical vitrified brick paving, asphalt filled, Tarvia double-sealed paving, or Willite sheet asphalt, with specifications as to each. The final selection of the paving material was reserved by the council until bids were received.

Throughout the proceedings, the street to be improved was designated as in the initial ordinance.

On June 10, 1924, the bids on file were considered, and a bid on asphaltic concrete paving was accepted, and the contract for construction was awarded.

On December 30, 1924, notice was given by publication to property owners interested that "the assessment roll or list prepared in accordance with the law in such cases" had been delivered to the city clerk and was open for inspection, and that the council would meet at a stated time to hear objections thereto. This notice recites that "the general character of the improvements constructed under said ordinance consists of certain grading, curbing guttering, and paving."

Some of the property owners, including this appellant, appeared and objected, and their objections were overruled.

Thereupon a final ordinance was adopted, adjudging that none of the several assessments was in excess of the increased value of the lot assessed, derived as a special benefit from the improvements made, and that the total of the assessments was not in excess of the costs thereof. The ordinance then declares that each of the assessments against each lot or parcel of land as shown to be owned by the persons therein named, be and the same is hereby fixed as the true, correct and final amount of assessments to be made against said lots or parcels of land for and on account of said improvements to said street.

Appellant's assessment appears as follows:

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Lot Block Survey Owner Front"Footage Amount

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Portion 331 Quigley's Cabaniss Fannie on Randolph street 385 $1,363.31

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From this assessment appellant appealed to the circuit court. On the trial there the city introduced in evidence a transcript of the assessment proceedings to which the city clerk, in his certificate, appended a description of appellant's lot, as follows:

"A portion of block three hundred thirty-one (331) according to Quigley's map of the city of Huntsville, Alabama, on file at the city hall of said city, and in the tax assessor's office of Madison county, Alabama; said portion of said lot fronting, to wit, 385 feet on Randolph street in the city of Huntsville, Alabama, and more particularly described as following, to wit:

"Beginning at the intersection of the north margin of Randolph street with the east margin of Calhoun street; thence along the east margin of said Calhoun street northwardly 185 feet; thence eastwardly and parallel with Randolph street 285 feet; thence southwardly and parallel with White street 100 feet; thence southwardly and parallel with White street 146 feet to the north margin of said Randolph street; thence westwardly along the north margin of said Randolph street 385 feet to the beginning." In her written protest against these street improvements, presented by "the undersigned owners of property abutting and fronting upon Randolph street and Randolph avenue in the city of Huntsville," appellant and other protestants recited:

"Attached hereto is a detailed statement of property owned by petitioners, against which it is proposed to assess the cost of said improvement."

For appellant this statement shows her entire frontage of 385 feet.

The parol evidence is sufficiently stated in the opinion.

In argument to the jury, the city's counsel used this language:

"The defendant has offered no evidence that her property has not increased in value except that of herself. If she is right about this, that her property has not increased in value by reason of this street paving being built, why has she not brought witnesses here to prove it?"

Defendant objected to these remarks, and excepted to the overruling of the objection.

In his oral charge, the judge instructed the jury:

"While the city discharges the original burden (of proof) by the filing of the transcript, yet it is subject to be denied, subject to be contradicted, and then the question comes to you upon the whole evidence, taking into consideration the transcript and the evidence for the defendant, and the evidence for the city of Huntsville, the burden is upon the city of Huntsville to show to you, to prove to your reasonable satisfaction, that it (the property value) has been increased the amount it has been assessed."

Charge A requested by defendant was refused:

"A. I charge you *** that, after the defendant offers evidence sufficient to rebut the prima facie case made out by the city by the introduction of the transcript of the proceedings of the city council, then the burden shifts to the city to reasonably satisfy you from the evidence that the defendant's property (value?) has been increased by reason of the alleged improvement."

The jury found for the plaintiff for the total amount of the assessment, and judgment was rendered for that amount, and a lien therefor established.

The judgment describes the property in question by metes and bounds in accordance with the description certified with the transcript by the city clerk.

The defendant appeals.

Agee & Bibb and H.H. Evans, all of Anniston, for appellant.

Lanier & Pride, of Huntsville, for appellee.

SOMERVILLE J.

Section 2190 of the Code provides:

"When any improvement made under the provisions of this article [33] is contemplated [?], the mayor shall cause to be prepared a roll or list showing the names of the property owners, and opposite each name a description of each lot or parcel of land proposed to be assessed for such improvement, belonging to such owner or owners, and the amount proposed to be assessed against each lot or parcel of land."

An examination of this statute as originally enrolled and as first published (Gen.Acts 1907, § 10, p. 301) shows that the word "contemplated" was substituted by typographical error for "completed." Indeed, from a mere reading of the statute, in connection with the preceding provisions of article 33, the error is plainly and conclusively apparent.

It is insisted that the assessment roll in this case was filed, contrarily to the true meaning of the statute, before the improvement was completed. The record, however, does not support this contention. It is not necessary for the city council to show upon the minutes of its proceedings that the improvement has been completed, before taking the steps that appropriately follow that event; and it will always be presumed, in the absence of proof to the contrary, that there has been a precedent completion. But, apart from that presumption, the notice ordered by the council, and the final ordinance of assessment, show by necessary implication that the improvement had been already completed. So, whether a premature filing of the assessment roll be regarded as of material consequence or not, the objection here is without merit.

Another more important insistence is that the description of defendant's property in the final assessment ordinance is not sufficiently definite to support the assessment.

In the absence of other requirement by statute, the description of the property to be assessed in these proceedings will be sufficient if it identifies it with reasonable certainty. 28 Cyc. 1164. The Supreme Court of Mississippi thus states the rule:

"In order to fix a lien on property, it ought to be described with such certainty as from the description alone contained in the assessment the property could be located with certainty. If the description in the

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