Day v. City of Montgomery

• Decision Date: 08 June 1922
• Docket Number: 3 Div. 566.
• Parties: DAY v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

93 So. 609

207 Ala. 644

DAY v. CITY OF MONTGOMERY.

3 Div. 566.

Supreme Court of Alabama

June 8, 1922

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Willie Day against the City of Montgomery to enjoin the enforcement of a lien for street improvement. From a decree sustaining demurrer, complainant appeals. Affirmed.

It is a mere immaterial irregularity that notice of filing of assessment roll for street improvements in terms required the filing of objections before meeting of the council, as this could not preclude the right under Code 1907, § 1381, to file the same before or at the meeting.

The bill avers that complainant is a resident of the city of Montgomery and an owner of certain real estate specifically described; that the city of Montgomery claims a lien upon the complainant's property, which it is about to proceed to enforce, for curbing and gravel put upon the roadway in front of complainant's property, under an ordinance adopted by the board of commissioners of the city of Montgomery on November 18, 1919, the substance of which ordinance is set out in the bill as follows:

"That the entire cost and expense of the improving and paving proposed to be done under this ordinance, shall be assessed and levied against the property abutting on said streets to the extent of the increased value of such property by reason of the special benefits derived from such improvements and pavement, and not in excess of the total cost of such improvements and pavement, and provided however, that the cost of improving or paving between the rails of any street railroad or any other railroad track and the space between the tracks, including switches and turnouts, shall not be assessed against the property abutting on said streets and avenues as aforesaid, but shall be paved by the owners of such railroads and shall be assessed against and form a lien on said railroad and the property used in connection therewith."

The bill avers that said lien is claimed as an assessment against her property to cover the cost of such gravel and curbing that said assessment was not made in the manner prescribed by law and is greatly in excess of the increased value to complainant's property by reason of benefits derived from such improvement; that there are two street railroad tracks on the roadway; and that the owner of said railroad has not been assessed for the space between such tracks and 18 inches on each side thereof, but for the space between the tracks only. It is further averred that the city of Montgomery is claiming that complainant is estopped and precluded from raising objections to said claim of lien by reason of the fact that the city clerk on October 9, 1920, gave notice by publication in a newspaper as follows:

"Notice to Property Owners on Tuttle Avenue from the East Side of Pineleaf Street to the West Side of Sudie Street:

"All owners of lots or parcels of land abutting on Tuttle avenue from the east side of Pineleaf street to the west side of Sudie street are hereby notified that the roadway of the aforesaid portion of said Tuttle avenue from the east side of Pineleaf street to the west side of Sudie street, has been paved with gravel and that the aforesaid portion of said street has been improved by curbing, surface sewers, storm sewers, brick walls, etc., that the assessment roll or list for said public improvement has been delivered to me and is open for inspection to the public, and all parties concerned in the office of the city treasurer, in the city of Montgomery, and that the board of commissioners of the city of Montgomery will meet in the commission chamber in the city hall of Montgomery on the second day of November 1920, at eleven o'clock a. m. to hear objection or defenses that may be filed in my office to such assessments or amounts thereof before the time of said meeting, or which may be made by any owner of property proposed to be assessed, or his attorney against the assessment or amount thereof.

"Oct. 9-16, 1920.

C. B. Smith, City Clerk."

It is further averred that the statute under which said notice was given is void; that said notice was not sufficient to inform complainant that the assessment roll was to cover the paving with gravel and that said notice informed complainant that his objections or defenses would have to be filed before the time of the meeting therein mentioned, whereas she would have been permitted to file her objections or defenses at the time of said meeting; that while the notice recites that the assessment roll has been delivered to the clerk, it had not in fact been so delivered and was not open for inspection. The bill further avers that the lien in question constitutes a cloud on complainant's title.

The prayer is for injunction to prevent the city from enforcing said lien, and the removal thereof as a cloud on title.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellant.

Ludlow Elmore, of Montgomery, for appellee.

McCLELLAN J.

This bill, filed by appellant against the city of Montgomery seeks injunctive process to restrain the enforcement of a lien for the improvement of a certain street in the city. The city's demurrer to the amended bill was sustained upon the ground, it appears,...