City of Bluefield v. McClaugherty
| Decision Date | 15 December 1908 |
| Citation | 63 S.E. 363,64 W.Va. 536 |
| Parties | CITY OF BLUEFIELD v. McCLAUGHERTY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
An ordinance of a city council or board of supervisors of a city having statutory authority to cause property owners to pave sidewalks at their own expense, which requires a property owner to lay "granolithic" walk on a street on another portion of which such walk is already laid, and saying the walk to be laid "shall be the same width as the granolithic walks which have already been laid" thereon, suffices for recovery of the cost of laying the walk by the city on default of the property owner, although it does not specify the composition of such walk.
[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig § 811; Dec. Dig. § 304. [*]]
A resolution, so passed, or order, so made, requiring plank walks to be laid on certain streets, and saying "all of said plank walks to be six feet wide and in accordance with specifications to be furnished by the city engineer and ordinances of the city," is construed as referring to specifications already prepared and filed in the city engineer's office and shown by ordinances previously adopted, and is sufficient.
[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig § 819% 1/2; Dec. Dig. & 308. [*]]
When such an order has been made and notice served on the property owner, his failure to lay the walks within the time prescribed amounts to a refusal to lay the same within the meaning of the statute, and no express refusal need be proved.
[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 745-749; Dec. Dig. § 281. [*]]
That 20 days was given the defendant in which to lay the walks in such case, the statute requiring only 10, will not preclude recovery by the city; it being an immaterial departure and beneficial to the property owner.
[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 745-749; Dec. Dig. § 281. [*]]
A formal assessment of the cost of laying walks by the city, under such circumstances, evidenced by a city record, is not necessary to recovery, such assessment being a ministerial act, having no judicial force, under the statutes of this state, or the charter of the city of Bluefield.
[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 454. [*] ]
Failure to except to the overruling of an objection to the introduction of a document, because not properly authenticated, amounts to a waiver, and is not cured or saved by the subsequent exclusion of the entire evidence as being insufficient to sustain a finding for plaintiff.
[Ed. Note.-For other cases, see Trial, Cent. Dig. § 264; Dec. Dig. § 105. [*] ]
Ordinarily production of public records, provable by certified copies, will not be compelled.
[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1540; Dec. Dig. § 368. [*] ]
Error to Circuit Court, Mercer County.
Action by the City of Bluefield against R. C. McClaugherty. Judgment for defendant. Plaintiff brings error. Reversed and remanded.
Harold A. Ritz and Sanders & Crockett, for plaintiff in error.
R. C. McClaugherty, for defendant in error.
POFFENBARGER, P.
The city of Bluefield, on an appeal from the judgment of a justice of the peace, sought a judgment in the circuit court of Mercer county against R. C. McClaugherty for the costs of laying certain sidewalks in front of property of his. The court, under an agreement of the parties to submit all matters of law and fact to it, excluded the evidence, and rendered judgment for the defendant. On its writ of error to this judgment, the city asks a reversal thereof and the rendition of a judgment here in its favor as upon a demurrer to the evidence. That the walks were laid at the expense of the city in front of the defendant's property, where the latter might have been compelled to construct walks, by proper proceedings on the part of the city, is not denied. The contention is that the procedure on the part of the city was not in accordance with the charter and ordinances of the city, and was therefore ineffectual to bind the property owner to repay the costs of such construction as upon a default on the part of the property owner. The power of the city under its charter to recover by action money expended in laying sidewalks, after having made a proper demand upon the property owner to construct them, is undoubted. Section 38 of its charter, as amended by the Legislature (Acts 1905, p. 65, c. 3), says: "The sum or sums of money so expended for laying sidewalks, paving or repairing shall be a lien upon the lots abutting or abounding the same, which lien may be enforced by suit in equity in the name of the city in any court having jurisdiction, or the same may be collected by a suit at law in any court or before any justice having jurisdiction." The same section says: "In case the said property owners or any of them refuse to lay said sidewalks or paving as may be required, when required to do so, the board of supervisors shall have the authority to have the same done."
But it is urged that the resolution of the board of supervisors was wholly ineffectual to impose upon the defendant the duty to lay these walks because (1) it did not fix a time within which the work should be done; (2) it did not specify the manner in which the work should be done and the materials out of which the walk should be constructed. On the assumption that these objections may be unavailing, lack of proof of the refusal of the defendant to comply with the demands made upon him is urged, inasmuch as he failed to put down the walk, without having expressly declared his intention not to do so. The plaintiff introduced a copy of an order passed by the board of supervisors of the city on the 21st day of July, 1905, requiring granolithic sidewalks to be laid on the west side of Mercer street, commencing at the Flat Top Grocery Company's sidewalk and running to the corner of Mercer street with Bluefield avenue, and to be of the width of the Flat Top Grocery Company's sidewalk; and thence, on both sides of Bluefield avenue, to a point 100 feet west of Cherry street, the walk to be of the same width as that already laid on said avenue. It was further ordered that plank walks be laid by the abutting property owners on both sides of Walnut street from Bluefield avenue to Highland avenue; on both sides of Highland avenue from its intersection with Pearis street, west to Pine street, and thence north on Pine street, east side, to Bluefield avenue, all of said plank walks to be six feet wide and in accordance with specifications to be furnished by the city engineer and ordinances of the city. The plaintiff also introduced notices served upon the defendant on the 5th day of August, 1905, signed by J. T. Akers, auditor of the city, specifying minutely the method of construction of the granolithic sidewalk, the materials of which it was to be composed, and the dimensions, materials, and method of construction of the board walks, designating the lots in front of which the defendant was required to lay the walks, requiring him to construct the same within 20 days from the date of the notice, and apprising him that, if he should fail to do so, the city would construct them, and the costs thereof would become a lien on the lots. If the substance of this notice had been incorporated in the resolution adopted by the board of supervisors on the 21st day of July, 1905, the resolution would undoubtedly have been complete and sufficient in all respects. It would have set forth specifically and in detail almost every conceivable matter of specification. But, on the assumption that they were not incorporated in the resolution, it is urged that the specification thereof in the notice given by the city auditor does not aid, or supply the defects in, the resolution, since it is argued the board of supervisors could not delegate authority in this respect to him; he being a ministerial officer. The extension of 20 days' time to the defendant within which to lay the walk is also made the basis of an objection or criticism, since the charter requires 10 days' written notice to be given.
While the resolution requiring granolithic sidewalks to be laid did not specify the ingredients of the compound to be used in effecting the work, it did give information concerning the same. It said: "The sidewalk to be the same width as the granolithic walks which have already been laid on said avenue." If there had been no intimation, by reference or otherwise, as to the nature and composition of granolithic walks, and the term "granolithic" had not been in any manner defined, the resolution would have been insufficient for failure to give reasonable notice or information as to the kind of walk required. But it points to walks of that kind already laid on the street to which it relates. The composition of that kind of walk and the method and cost of its construction were easily ascertainable by the property owner. It was a mere matter of inquiry. That the new walk was to be of the same character as the old was manifested by the expressed purpose to extend the existing sidewalks. As the resolution did not indicate a kind of granolithic walk different from that already laid, the property owner as matter of law governing the construction of the resolution or order, could safely assume that the new walk was to be of the same plan, composition, and character as the old, and proceed accordingly. The resolution having thus laid the basis for a demand...
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