City of Natchitoches v. Kile

• Decision Date: 02 November 1951
• Docket Number: No. 7671,7671
• Citation: 54 So.2d 834
• Parties: CITY OF NATCHITOCHES v. KILE.
• Court: Court of Appeal of Louisiana — District of US

Page 834

54 So.2d 834

CITY OF NATCHITOCHES v. KILE.

No. 7671.

Court of Appeal of Louisiana, Second Circuit.

Nov. 2, 1951.

Rehearing Denied Nov. 30, 1951.

Watson & Williams, Natchitoches, for appellant.

J. D. Rusca, Natchitoches, for appellee.

TALIAFERRO, Judge.

This is a proceeding in rem to enforce against defendant's property on Fourth Street in the City of Natchitoches, Louisiana, an alleged paving lien and privilege arising from the paving of said street in front of said property, the cost thereof being $634.93.

Plaintiff alleged that preceding said paving more than 60% of the abutting property owners, within limits named in the petition, including defendant with others, petitioned the City asking that said portion and other portions of said street be hard surfaced or 'blacktopped', at the cost of the abutting owners; that after said petition had been checked by plaintiff to determine its correctness and had been signed by the necessary number of property owners, the City ordered said street to be blacktopped; that the work was done in accordance with said petition, and on July 12, 1949, by ordinance, the work was accepted and a special tax or assessment of $3.802 per lineal foot livied against all of the property abutting Fourth Street, including defendant's, as a means to pay the cost of the work.

Plaintiff alleged additionally as follows, to-wit:

'Petitioner further shows that in the event there are any informalities in the method of levying this paving lien and assessment against the property of Miss Alice M. Kile, then that the City is entitled to judgment against Miss Kile in the property hereinabove referred to on the basis of quantum meruit.

'That Miss Kile was one of the signers of the petition requesting that this property be blacktopped on Fourth Street; that she saw the work being done and made no complaint or protest whatsoever until the time came for her to pay for her pro rata cost of the said paving and blacktopping, and that she is now estopped from claiming any informalities in the method of levying the assessment or paving lien against this property. That a copy of the petition, signed by Miss Kile and the other property owners, is attached hereto and made a part hereof.'

Amicable demand for payment and refusal by defendant to pay said amount is alleged.

Defendant in limine litis, prayed oyer of the following, viz: A certified copy of:----

1. Ordinance or resolution of the City of Natchitoches accepting the petition of the property owners abutting Fourth Street;

2. Ordinance or resolution of the City of Natchitoches describing the contemplated improvement of Fourth Street and ordering the work done;

3. Of said advertisement;

4. Ordinance or resolution of the City of Natchitoches accepting the bid and ordering the work done;

5. The contract for the performance of the paving.

Answering the prayer for oyer, plaintiff confesses that it is impossible to produce the named instruments or copies thereof simply because they do not exist and have never existed.

Plaintiff further avers that a contract for the paving of 20 odd blocks in said City had been awarded to Campbell Construction Company, after advertisement, etc., and thereafter, without further ado, paving Fourth Street was simply 'added to the original contract * * * at the same unit price'; that it was of the opinion that prior advertisement for bids to do this paving was unnecessary.

Following the filing of the answer to the prayer for oyer, defendant filed exceptions of no cause and no right of action. These exceptions were sustained and the suit dismissed. Plaintiff appealed.

The case tenders only a question of law. Act No. 168 of 1926, LSA-RS 33:3351 et seq., is the law under which plaintiff acted in the prosecution of the paving program to which referred.

It is not denied, but on the contrary, admitted, that the provisions of the Act were not observed precedent to having the paving done in front of defendant's property.

No bids were asked for by public advertisement as required by the Act, and, of course, the contract was not in that manner, nor could it be, let to the lowest responsible bidder.

The admitted facts simply prove that the work was done pursuant to extension of the former contract by adding thereto that part of Fourth Street in front of defendant's property. It, therefore, follows that the work was illegally done, and the contract under which the work was done was invalid for the reasons stated.

But plaintiff counters with the contention that as defendant signed the petition asking that the paving be done, and remained silent while it was being done, she is now precluded and estopped from contesting, challenging or opposing the City's right to compel her to pay the cost of the work. To support this position the following cases, inter alia, are cited, to-wit: Town of De Ridder v. Lewis, 139 La. 903, 72 So. 447; Clark v. City of Opelousas, 147 La. 1, 84 So. 433; Village of South Highlands v. Lagier, 156 La. 150, 100 So. 287; Town of Ruston v. Adams, 9 La.App. 618, 121 So. 661

In the De Ridder case the court held that in the absence of fraud the acceptance by a municipal corporation of paving done under a legal contract, is conclusive upon the owner of abutting property, as to the character of the work, in a suit to...