City of Shreveport v. Curcio

• Decision Date: 02 November 1934
• Docket Number: 4860
• Citation: 157 So. 317
• Court: Court of Appeal of Louisiana — District of US
• Parties: CITY OF SHREVEPORT v. CURCIO

157 So. 317

CITY OF SHREVEPORT v. CURCIO

No. 4860

Court of Appeal of Louisiana, Second Circuit.

November 2, 1934

Rehearing denied December 5, 1934.

Lewell C. Butler and M. T. Monsour, both of Shreveport, for appellant.

John B Files, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Defendant is now, and has been for many years, the owner of lots 1 and 2 in block 8. Allendale Heights subdivision in city of Shreveport. These lots front on Pierre avenue 80 feet, and extend back along Ashton street a distance of 125 feet. Prior to the year 1928 she erected a two-story brick building on the lots, with a front of 30 feet on the avenue and running back on Ashton a depth of 50 feet. At this date the avenue was paved, but Ashton street was not. While the floor of the front of the building was flush with the sidewalk on Pierre avenue, at the rear end it was some 8 or 10 feet above the ground, leaving a large open space between the ground and floor. This space was inclosed by the rear wall of the building and portions of the two side walls, and was utilized as a basement for storing things. On the Ashton street side thereof a door 6 by 7 feet was left. The floor of the basement when constructed was from 3 to 31/2 feet below the level of Ashton street. Automobiles could be driven from the street through the door into the basement.

In the latter part of the year 1928, the city of Shreveport, acting under Act No. 187 of 1920, as amended by Act No. 115 of 1922, and upon petition of the required number of property owners on Ashton street, between Pierre avenue and Norma street, decided to pave Ashton street between the avenue and Norma street; and in June, 1929, let a contract for the paving to be done. It was found necessary in order to construct a grade of not more than 6 per cent. on the street, sloping from Pierre, to make a fill thereon of from nothing to 4 feet at a point opposite the rear of defendant's building. This fill increased the grade from the street curb to the door of the basement, a distance of 161/2 feet, to such extent that vehicles could not go from the street into the basement.

After the paving had been completed, and accepted by the city, in September, 1929, the liability of each abutting owner was ascertained, assessments were made, and the evidence of the lien securing payment of the amounts assessed was registered in the mortgage records of Caddo parish. The amount found due by defendant was $ 588.45. This amount not having been paid, the city, on January 29, 1931, instituted this suit against defendant to recover judgment therefor, and to enforce the lien and privilege against her property as provided by Act No. 187 of 1920 (section 5).

Defendant, answering articulately, denied all the allegations of the petition, save her ownership of the property described therein. She affirmatively alleged that the fill on Ashton street greatly damaged her property and reduced the sale value thereof, in this: That the loss of rentals on the basement of the building amounted to $ 1,500, and the decrease in sale value of the entire property was $ 500. She prays for judgment in reconvention for these amounts. In the alternative, her position is this: That should the court hold she is not entitled to judgment against plaintiff for said amounts, "then she is entitled to have said damage offset any claim that the City may have for paving or grading said street." Against defendant's reconventional demand, plaintiff interposed a plea of prescription of one year. Act No. 26 of 1908. The lower court gave judgment for plaintiff, but also decreed that said judgment was offset and compensated in full because of the damage done to defendant's property as by her alleged. To this extent the plea of prescription was overruled. The court, in effect, held that the damages sustained by defendant were as much as the sum due the city on paving account. Plaintiff appealed from this judgment.

The first contention of defendant to be given consideration is that which is directed against the sufficiency of proof adduced by plaintiff in support of the verity and correctness of the amount of the paving claim sued for, and the validity of the lien and privilege relied upon to secure its payment. If the proof offered by plaintiff does not establish its contention in these respects, other questions raised by the pleadings need not now be passed upon.

The record contains the petition of the abutting property owners on that part of Ashton street included in the paving program, asking that the street be paved, and the ordinance of the city declaring that said petition was signed "by more than the number legally required of the property owners whose property abuts upon said street," and in which ordinance the paving was ordered to be done with asphaltic concrete, according to plans and specifications attached thereto and thereby adopted. The ordinance also directs that the paving be done under the provision of Act No. 187 of 1920, and amendments thereto, and that advertisement for bids therefor be made in the official journal of the city. There is also in the record the ordinance of the city accepting bid of Flenniken Construction Company to do the paving in the manner and according to the adopted plans and specifications therefor. The record also contains the plaintiff's ordinance accepting the paving done by the successful bidder, wherein the amounts due by each abutting property owner is definitely fixed, in connection with the description of property owned by each, and assessments against same made and levied. As stated before, this ordinance was duly inscribed in the mortgage records of Caddo parish. The plans and specifications governing the grading of the street and the laying of the paving thereon were not introduced in evidence; neither was the written contract with the Construction Company introduced. It is on account of the absence of these documents from the record, and the failure of the record to disclose the method of arriving at the amount due by defendant for the paving adjacent to her property, the basis of the assessment against her, and the absence from the record of any evidence showing the quality of the paving, or its unit price, etc., that defendant contends that plaintiff's case has not been made out.

Defendant did not petition for the paving to be done. She registered no objection to its being done, nor to the method and manner in which it was done, nor to the character or quality of the paving.

We are of the opinion that the evidence submitted by plaintiff is sufficient, under the circumstances, to prove its case in so far as relates to the amount sued for and the lien and privilege securing its payment. At least, this documentary evidence makes out a strong prima facie case against which...