City of Winston Salem v. Smith

• Decision Date: 16 June 1939
• Docket Number: 740.
• Citation: 3 S.E.2d 328,216 N.C. 1
• Parties: CITY OF WINSTON SALEM v. SMITH et al.
• Court: North Carolina Supreme Court

3 S.E.2d 328

216 N.C. 1

CITY OF WINSTON SALEM v. SMITH et al.

No. 740.

Supreme Court of North Carolina

June 16, 1939

Civil action to recover for street and sidewalk paving assessment on alleged abutting property of defendant, Edward Hill devisee of Thenia Smith, who died pending the action.

The case was heard below upon an agreed statement of facts. The parties agree that "the sole question to be determined is whether lot #10 now belonging to the defendant is subject to this assessment made by the city of Winston Salem for the construction and improvement of Cleveland Avenue and the construction of the sidewalk on Cleveland Avenue". With respect thereto, the agreed facts are substantially these:

In April, 1922, the city of Winston Salem, contemplating the construction of a thoroughfare to be known as Cleveland Avenue, of more than a mile in length and crossing 12th Street, as a part of right of way, acquired title in fee simple to lot #9, lying south of and fronting fifty feet on 12th Street and extending in depth one hundred feet between parallel lines as shown on plat of Maple Park. The conveyance is by warranty deed containing full covenants of seizin and against encumbrances, but containing no expression of restriction or reservation.

In August, 1922, Thenia J. Smith acquired lot #10 which lies east of and contiguous to said lot #9.

In April, 1925, the Board of Aldermen of the city of Winston Salem, acting under authority vested in it by Chap. 56, P.L 1915, and general statutes pertinent thereto, and by charter of the city, and amendment thereto, Priv.Laws 1921, Extra Session, Chap. 37, Sec. 2, passed a resolution authorizing and directing the improvement by grading and paving of that part of Cleveland Avenue between 26th Street and Belews Street, the actual cost of which, exclusive of that incurred at street intersection and of that to be borne by railroad and street railways, "shall be charged against the owner or owners of the abutting property, that is, one half to the owner or owners of each side of said street". Notice of this resolution and of the time and place of a meeting of the Board of Aldermen when and where she might "be heard in respect to all matters relating to the proposed improvement and the manner and mode of doing the work" was duly served upon Thenia J. Smith.

The city constructed the Avenue on only a portion of said lot #9. Subsequently, notice of the fact that the street had been paved and of the time and place of a meeting of the Board of Aldermen called for the purpose of hearing objections in respect to special assessments for the construction and improvement of Cleveland Avenue was published as required.

Thenia J. Smith did not appear at either of the meetings or object in any way to the street assessments levied against her real estate, lot #10, and the assessment was duly confirmed by resolution of the Board of Aldermen.

In June, 1925, the city caused to be served upon Thenia J. Smith notice of a resolution of its Board of Aldermen authorizing the construction of concrete sidewalks of the width of five feet, on each side of Cleveland Avenue from 7th Street to 26th Street, and directing the "owners of property abutting on the improvements *** to make such improvements along their respective frontages according to certain plans and specifications, and to complete the same in a reasonable time, and in any event on or before July 7, 1925", and with notice that "if said improvement is not completed on or before the date named this Board will cause such improvements to be made *** and cause the cost thereof to be assessed against said owners ***".

The sidewalk was constructed by the city. Subsequently, notice was served on Thenia J. Smith, by publication as required by law, of the date and place fixed for a meeting of the Board of Aldermen for the hearing of objection with respect to the assessment for the sidewalk. She did not appear or object in any way to the assessment, and same was duly confirmed by the Board of Aldermen, nor did she appeal from the assessment for either the construction and improvement of Cleveland Avenue or the construction of the sidewalk thereon.

It is further agreed that--"In the construction of the street and in laying the sidewalk alongside thereof, only a portion of Lot #9, acquired by the city for the purpose, was utilized ***. The eastern portion thereof, having a frontage of five feet on 12th Street, a depth of one hundred feet along the east side of the sidewalk, and a width of seven and one half feet on the south end of the lot, was not utilized in any way by the city for street purposes, and the fee simple title thereof is still vested in the city *** unless the acquisition of the whole lot for street purposes and the construction of Cleveland Avenue and a sidewalk on a part thereof amounts to a dedication of the whole lot by the city for street purposes. No use whatsoever of the remaining portion of said lot has been made by the city or by the defendants, since the construction of the street and the sidewalk. The surface of such remaining portion is from three to seven feet above the level of the sidewalk and avenue that were constructed over the other part of the...