City of Shreveport v. Selber

• Decision Date: 16 February 1945
• Docket Number: 6806-6808.
• Citation: 21 So.2d 738
• Court: Court of Appeal of Louisiana — District of US
• Parties: CITY OF SHREVEPORT v. SELBER.

21 So.2d 738

CITY OF SHREVEPORT v. SELBER.

Nos. 6806-6808.

Court of Appeals of Louisiana, Second Circuit

February 16, 1945

Rehearing Denied March 15, 1945.

Cook Clark & Egan, of Shreveport, for appellant.

J H. Jackson, of Shreveport, for appellee.

TALIAFERRO Judge.

Plaintiff seeks to foreclose three paving liens against Lots 1, 14 and 16, respectively, of the Selber Subdivision, owned by defendant, in the City of Shreveport, Louisiana. The liens allegedly resulted from assessments against the lots of two-thirds of the cost of laying concrete pavement on a strip of land forming part of Southern Avenue between Lot 16 on the east and Lots 1 and 14 on the west. There were three different suits to enforce the liens. They were consolidated for trial in the lower court and have been consolidated here.

In limine defendant filed in each case an exception of vagueness and motion for bill of particulars in which he sought to have plaintiff provide facts and information, not disclosed in the petitions, inter alia, as to when and how the strip of land between defendant's lots was dedicated as a street, and the manner of plaintiff's acquisition of it or right-of-way thereover. The exception and motion were sustained in part, but were overruled as to the facts about the dedication. The District Judge who passed on the exception and motion did not preside at the trial on the merits.

Defendant's counsel, in brief, states that the judge reached the conclusion that, as the land after its acquisition by the City, became public property, no dedication of any part of it for street purposes, express or implied, was necessary.

During trial plaintiff offered evidence to show that the land was acquired for street purposes and to establish a dedication impliedly. Defendant objected to the admissibility of this evidence on the ground that the petitions did not contain any allegation of dedication. The objection was overruled and the proffered evidence admitted. This evidence, the trial judge expressly held, did establish an implied dedication. It follows from the court's ruling that it was of the opinion that a dedication of the land was necessary to the validity of the assessments against defendant's property. We concur in this conclusion.

In this court, defendant insists that said rulings were erroneous and prejudicial to his rights, and that the case should be remanded for further proceedings. He does not specifically state, however, to what extent or in what respect the rulings impair his rights or prejudice his interest.

If defendant's position should be sustained, we would have to remand the case to allow plaintiff to amend and defendant to further answer, if he desired to do so, and a new trial would be had. To warrant this action, we would necessarily have to hold that the rulings worked prejudice to defendant's rights; that he had been deprived of his day in court, and that he had exhausted all means at his command to protect his rights in the lower court. It is unlikely that any additional evidence would or could be adduced touching the question of dedication. Defendant does not contend to the contrary.

We do not think the rulings complained of, if erroneous, were prejudicial to or deprived defendant of any substantial right. He did not plead surprise nor ask for a continuance of the trial when the objected to evidence was tendered. Had he pleaded surprise and moved for a continuance on that ground, doubtless the trial judge would have granted him delay. He does not now claim to have been surprised by the evidence in question.

Mr. McMahon, Professor of Civil Law at the Louisiana State University, commenting on the exception of vagueness, pages 328, 329 of his work on Louisiana Practice, says: 'Effect of judgment overruling exception is to force defendant to answer. Theoretically, defendant should be permitted to complain of the vagueness of plaintiff's allegations on appeal, provided that proper reservation of rights under the overruled exception has been made. However, no case was found where the judgment of a trial court overruling this exception was reversed on appeal and the case remanded. In at least one case the Supreme Court has avoided the necessity of passing on the question by holding that defendant failed to bring up the question for review on appeal by failing to reserve his rights under the exception when overruled, and by failing to plead surprise when evidence was adduced. Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann.Cas.1912A, 976, 1910. It is submitted that the proper rule should be that if defendant is not surprised by the evidence adduced, and has failed to ask for a continuance because of such surprise, the error (if one be committed) is not prejudicial and therefore the court should not remand the case for a new trial. * * *'

Anent this question, the article of Dr. Paul M. Hebert, 6 Tulane Law Review, pages 169, 177 and 178, entitled 'Problem of Reversible Error in Louisiana' is interesting and enlightening.

The suits were resisted by defendant on two grounds, viz.:

(1) That at time of and prior to paving Southern Avenue between the lots, no part of the strip of land had been in any manner dedicated as a street; and that since the paving was laid, none of the unused portions of the land between said lots has been dedicated; and

(2) That the lots do not abut the improved or paved portion of the avenue. For these reasons, it is contended, the assessments are illegal.

Defendant reconvened and sued for the value of a triangular shaped part of Lot 16 appropriated by plaintiff and paved, and for depreciation in value of the remaining part of the lot due to the appropriation.

The paving involved herein was done under the provisions of Act No. 10 of 1896, as amended. The legality of the proceedings had by the City Council precedent to and culminating in the assessments attacked, save as is involved in the enumerated defenses, is not questioned.

Plaintiff was awarded judgment in each case as prayed for by it. Defendant was given judgment for Fifty ($50.00) Dollars on his reconventional demand. He appealed and complains of the judgments in all respects.

The facts of the cases, record and otherwise, are well stated by the trial judge in written reasons for judgment. We quote therefrom as follows, to-wit:

'The paving project out of which these assessments arose is the paving project out of which arose the assessments involved in Ford et al. v. City of Shreveport, 204 La. 618, 16 So.2d 127. As stated in the Supreme Court's opinion in that case, the City of Shreveport, in March of 1941, inaugurated proceedings to pave Southern Avenue from St. Vincent's Avenue to 59th Street, a distance of approximately 1.66 miles. * * *

'At the time of the inauguration of this paving project, the City already owned the necessary rights of way, except for the strip involved in the case at bar and the strip involved in the Ford et al. case, supra. It was, therefore, necessary, in order to complete the paving project as contemplated and authorized, to acquire these two strips.

'Shreveport Railways Company was interested in the project in that it had for years operated its street cars on steel rails along the route of Southern Avenue, including the 1.66 miles proposed to be paved, and it contemplated converting to trackless trolleys which, after the paving was completed, it did, and it is now operating its trackless trolley system over the whole of Southern Avenue and the public is using the same as a street.

'The Shreveport Railways Company owned a 60-foot-wide strip of ground, in fee, running through Selber Subdivision, on the West side of which strip lay Lots 1 and 14 and on the East side of which lay Lot 16. This 60-foot-wide strip was a missing link in the route of Southern Avenue as authorized to be paved, just as the 60-foot-wide strip involved in the Ford case was the only other missing link in said project.

'Accordingly after the paving was authorized by Ordinance No. 23 of May 27, 1941, the City proceeded to acquire these missing links. In the case at bar the City, on June 10, 1941, secured a deed from Shreveport Railways Company conveying the fee title to the 60-feet-wide strip owned by said Company and running through Selber Subdivision. This deed recites a cash consideration of $350.00. Mr. J. H. Jackson, City Attorney, testified that, although...