City of Fairmont v. Bishop

• Decision Date: 06 December 1910
• Parties: CITY OF FAIRMONT v. BISHOP.
• Court: West Virginia Supreme Court

69 S.E. 802

68 W.Va. 308

CITY OF FAIRMONT v. BISHOP.

Supreme Court of Appeals of West Virginia.

December 6, 1910

Submitted September 1, 1909.

Syllabus by the Court.

A city cannot, under section 34, c. 47, Code 1906, levy a street paving tax upon the owners of lots, except upon the written petition of the owners of the greater amount of the frontage of lots abutting on such street, between two cross-streets or between a cross-street and an alley, which lie next to each other. The city block is the unit of measurement in such case.

A bill by a city, brought under section 36, c. 47, Code 1906, to enforce the lien of a special street paving tax, assessed under section 34 of said chapter, upon the lots abutting on the paved street, is demurrable if it does not allege, in effect, that the owners of the greater amount of the frontage of lots abutting on such street and lying between the same cross-streets, nearest together, or lying between a cross-street and alley, within the same city block, with the lots against which the lien is asserted, signed a written petition asking that the street be paved.

Appeal from Circuit Court, Marion County.

Bill by the City of Fairmont against Edward T. Bishop. Decree for defendant, and plaintiff appeals. Affirmed.

Harry Shaw and M. Earl Morgan, for appellant.

William S. Haymond and W. S. Meredith, for appellee.

WILLIAMS J.

Plaintiff's suit was brought in the circuit court of Marion county to enforce the alleged lien of a special street paving tax assessed by it upon certain lots, owned by defendant abutting upon the paved street. A demurrer was sustained to both its original and its amended bills. It then declined to further amend its pleadings, whereupon its suit was dismissed, and it has appealed to this court.

Plaintiff as its name imports, is a municipal corporation, empowered by law with the right, and charged with the duty, of keeping up its streets. The bill alleges that a petition in writing signed by the owners of the greater amount of frontage of lots abutting on both sides of Columbia street and State street, between Guffy street and the corporate line, was presented to the city council, praying the city to pave said streets between said points; that Columbia street and State street are, in fact, one continuous street; that, pursuant to said petition, the city paved the street, and assessed two-thirds of the cost thereof upon the owners of the lots abutting on said streets, in proportion to the frontage. It also appears from the bill, and amended bill, that at the end of Columbia street and the beginning of State street it is crossed by Drake alley, and that 134 feet of defendant's lots abut on Columbia street in the block formed by Guffy street and Drake alley, and 143 feet abut on State street, between Drake alley and the corporate line of the city. Plaintiff does not allege, however, that the petition for the paving was signed by the owners of a majority of the frontage on both sides of either that part of the street called Columbia street or that part called State street, which form distinct city blocks; and it is insisted that the failure to allege this constitutes a defect fatal to the bill. This depends upon a proper construction of section 34 of chapter 47, Code 1906, which reads, in part, as follows:

"Upon the petition, in writing, of the persons owning the greater amount of frontage of the lots abutting on both sides of any street or alley, between any two cross-streets, or between a cross-street and alley, the council of any such city, town or village, by a lawful majority thereof, may order such part of any street or alley to be paved between the sidewalks with cobble-stone, brick, Belgian blocks, asphaltum or other suitable material, from one of such cross-streets to the other, under such regulations as may be fixed by the ordinance duly passed by council; two-thirds of the cost of such paving shall be assessed to the owners of the lots or fractional parts of lots abutting on that part of the street or alley so paved, in proportion to the distance such lot or part of a lot abuts on such street or alley, and the remaining one-third of the cost of such paving shall be paid by the city, town or village. In making such assessments the basis shall be the cost of paving that part of the street or alley on which the property lies, included between the adjoining cross-streets or alleys; and the amounts assessed against the owners of each lot or fractional part of a lot, shall be in the proportion which the frontage of such lot or part of a lot bears to the whole cost of paving said street or alley between said cross-streets or alleys as aforesaid."

What is to be made the unit of measurement, in the matter of paving streets upon the petition of lot owners, as provided for by this section? Can any desired length of street between any two cross-streets, however far apart they may be, and without regard to intervening cross-streets, be taken as the unit; or must the block of lots abutting on both sides of that portion only of the street which lies between two cross-streets next to each other be taken as the unit? In other words, must not a city block be taken as the unit? We think clearly so. This, we think, is the interpretation which this court gave to the statute in Dancer v. Town of Mannington, 50 W.Va. 322, 40 S.E. 475; and we think it is the proper one.

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