City of Atlanta v. Gabbett

• Decision Date: 06 November 1893
• Citation: 20 S.E. 306,93 Ga. 266
• Parties: CITY OF ATLANTA v. GABBETT.
• Court: Georgia Supreme Court

20 S.E. 306

93 Ga. 266

CITY OF ATLANTA v. GABBETT.

Supreme Court of Georgia

November 6, 1893

Syllabus by the Court.

1. The statute under which a local assessment was made upon adjacent property, on account of the construction of a sewer requiring that the notice to be published prior to the final passage of the ordinance should contain a statement of the size of the contemplated sewer, a notice that the sewer would be "of various diameters," with nothing else to indicate its size, was no compliance with the statute, and the ordinance thereafter passed was illegal and void. All that was done under it was without authority of law, and no assessment upon adjacent property on account of the construction of the sewer is collectible.

2. The ordinance can derive no aid from a proper notice published prior to its introduction, the statute requiring that the notice should be published, not before, but after, the ordinance was introduced.

3. Where the scheme of the statute providing for the construction of sewers is to make or authorize local assessments upon adjacent property in consideration of benefit to the property in the matter of sewer connection, a mere strip of land lying between the sewer and the next proprietor's tract, too narrow for any use in which local sewerage would be needed or available, is not assessable, the statute not contemplating the assessment of any property other than that which could possibly be benefited in the manner indicated. That this intervening strip would, since the construction of the sewer, be desirable property for the adjoining proprietor to own, and would, as his property, be much enhanced in value by reason of the construction of the sewer, is irrelevant.

Error from superior court, Fulton county; Marshall J. Clarke Judge.

Petition by Sarah E. Gabbett against the city of Atlanta to restrain the collection of executions issued to enforce the payment of assessments for sewer construction. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant brings error. Affirmed.

A strip of land lying between a sewer and the next proprietor's land, not available for any use, is not assessable for the building of the sewer.

The following is the official report:

Mrs Gabbett, by her equitable petition, sought to enjoin the city of Atlanta from collecting two executions,--one issued to enforce an assessment against her property on account of the construction of what is known as the "Butler Street Branch Sewer" through her property in Atlanta, and the other issued to collect a similar assessment on account of the construction of what is known as the "Rice Street Sewer" through her property. The jury, under the direction of the court, made a verdict in favor of enjoining altogether the collection of the first execution mentioned and of enjoining the collection of one-half the assessment remaining after the deduction of certain admitted overcharges on account of the construction of the Rice street sewer. The motion for new trial made by defendant was overruled, and it excepted. The motion contained the grounds that the verdict was contrary to law, evidence, etc. Also, because the court erred in admitting in evidence, over defendant's objection, the testimony of G. W. Adair, to the effect that only a small part of the area of the plaintiff's property was susceptible to direct drainage by the sewers constructed by defendant through plaintiff's property, and for the construction of which the executions in question were issued. Defendant's objection was that the rate and method of the assessments against the property of plaintiff for the building of the sewers were fixed by the act of November 8 1889, amending the charter of Atlanta, and that it was not competent for plaintiff, under the pleadings, to have the question of the reasonableness or unreasonableness of these statutory assessments submitted to the jury on the testimony of witnesses. It appears from the petition of plaintiff that the question of the reasonableness of these assessments is raised by her petition, it being alleged by her, in the petition, that the sewers are not in any sense such as can be used by her for draining...