City of Ozark v. Byrd, 4 Div. 659.

• Citation: 225 Ala. 332,143 So. 168
• Decision Date: 25 June 1932
• Docket Number: 4 Div. 659.
• Parties: CITY OF OZARK v. BYRD.
• Court: Alabama Supreme Court

143 So. 168

225 Ala. 332

CITY OF OZARK v. BYRD.

4 Div. 659.

Supreme Court of Alabama

June 25, 1932

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Proceeding by the City of Ozark to assess property of A. B. Byrd for street improvements. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals.

Reversed and remanded.

Chas O. Stokes and Sollie & Sollie, all of Ozark, for appellant.

Jos. E Acker, of Ozark, for appellee.

KNIGHT J.

The city of Ozark, under the municipal public improvement statutes authorizing municipalities of this state to improve its streets and to levy the cost thereof against the abutting property owners made certain improvements upon Eufaula street of said city. The appellee's property abutted upon that street. After making the improvements, which consisted of the contruction of "storm drains, concrete sidewalks concrete curbs and gutters and brick street paving on concrete base," the appellant undertook to levy the cost of the same, within constitutional limitations, upon the abutting property. The city of Ozark, acting through its duly constituted authorities, levied an assessment against the property of this appellee in the sum of $684.08. From this assessment the appellee appealed to the circuit court, under the provisions of sections 2204 and 2205 of the Code (as amended by Acts 1927, p. 767). The only question litigated upon the appeal was the increase in value, if any, of appellee's property by reason of the special benefits derived from the improvements, and whether or not the assessment exceeded such increased value.

The jury rendered a verdict in favor of the defendant upon the issue, and judgment was entered accordingly.

But few errors are assigned upon the record. The evidence was in sharp conflict, and we cannot affirm that the trial court committed reversible error in overruling the appellant's motion for a new trial. While it is scarcely conceivable that residential property, located as appellee's property is, was not enhanced in value by reason of the special benefits derived from the construction of the paved road, storm sewers, concrete sidewalk, curbs, and gutters, yet the enhancement vel non was a question, in this case, to be determined by the jury, and their verdict should not be disturbed unless palpably wrong; and the decision of the trial court, refusing to grant a new trial on the ground that the verdict was contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Southern Ry. Co. v. Eaks, 220 Ala. 49, 124 So. 88; Cooke v. Embry, 219 Ala. 623, 123 So. 27.

It is insisted by appellant that the court committed reversible error in charging the jury in the terms of appellee's given instructions (which we have numbered for convenience 1, 2, 3, and 4). While given charges 1, 3, and 4 use the term of "special benefit to the owner," and for that reason were possibly misleading, and might have been refused without error, yet the case will not be reversed for that defect; the charges being otherwise unobjectionable. If the appellant conceived that they had a tendency to mislead, explanatory charges should have been requested. Harris v. Basden, 162 Ala. 367, 50 So. 321.

Section 223 of the Constitution provides: "No city, town, or other municipality shall make any assessment for the cost of sidewalks or street paving, or for the cost of the construction of any sewers against property abutting on such streets or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the special benefits derived from such improvements." (Italics supplied.)

In the case of Ex parte Hill (In re City of Tuscaloosa v. Hill), 194 Ala. 559, 69 So. 598, 599, which is one of our leading and best considered cases on the questions now before the court, it is said: "It will be noted that to hold that the assessment can be based upon a general benefit to the property or upon the enhancement of the value of the same resulting from general benefits, as distinguished from an enhancement of the value by reason of special benefits derived from such improvement, would render meaningless the above italicized words, and the section would be construed as if they were not included. Special benefits were inserted for some purpose, and it is evident that the assessment cannot be predicated upon a general enhancement of the value of the property, the difference in the market value before and after the improvement, regardless of a special benefit to the owner resulting from said improvement and which increased the value of the property. This holding not only gives force and effect to the plain and unambiguous language of section 223 of the Constitution, but is in conformity with the leading authorities and text-writers on the subject of special assessments. Dillon on Municipal Corporations, vol. 4, page 2553; Page & Jones on Assessments, vol. 2,§§ 654 to 702; McQuillen on Municipal Ordinances, § 522."

And in the case of Hamrick v. Town of Albertville, 219 Ala 465, 122 So. 448, the right of municipalities to levy and collect special assessments against property abutting on streets improved under constitutional and statutory authority was again considered by this court, with reference to the meaning of "increased value" as employed in section 223 of the Constitution. And it is there held that "increased value" of such property by reason of the special benefits derived from such improvements, as declared in the quoted section of the Constitution, means the superadded special value expressed in dollars and cents by reason of the special benefits derived from such improvements as affecting the abutting property on such street or sidewalk so paved, or drained by such sewers. This holding carries out the intention of the framers of our organic law, and seems to be supported by...