Gillespie v. Fuller Const. Co., 10901.
| Decision Date | 18 November 1933 |
| Docket Number | No. 10901.,10901. |
| Citation | 66 S.W.2d 798 |
| Parties | GILLESPIE v. FULLER CONST. CO. |
| Court | Texas Court of Appeals |
Wm. H. Clark, Jr., J. P. Rice, and Clark & Clark, all of Dallas, for plaintiff in error.
W. H. Graham, of Houston, for defendant in error.
Hugh S. Grady and H. P. Kucera, both of Dallas, for City of Dallas, amicus curiæ.
With a paving certificate as the basis, issued by the city of Dallas to the Fuller Construction Company, for paving constructed on Live Oak street in said city, such company instituted this suit in a district court of Dallas county and recovered from A. C. Gillespie, plaintiff in error, the sum of $2,012.58, with interest thereon from October 25, 1926, at the rate of 7 per cent. per annum, and the additional sum of $250 as a reasonable attorney's fee, together with foreclosure of the paving lien on plaintiff in error's real property abutting on Live Oak street. An appeal has been duly perfected to this court. The following are the facts:
On February 9, 1926, the city of Dallas, a municipal corporation, by resolution, duly passed and approved by the mayor, ordered the improvement of Live Oak street, a public street in said city, in the following manner: (a) That said street should be cut or filled so as to bring same to grade; and (b) that the street should be paved from curb to curb with one of three designated materials, and with concrete curbs or gutters installed on each side of the street, where adequate curbs and gutters were not then installed.
After the passage of the resolution, all of the necessary steps to carry into effect the order for paving Live Oak street and to fix a debt against the property owners whose property abutted on said street as well as a lien against the property to pay the cost of the paving was taken by the city in accordance with the provisions of the city charter. One of the materials, designated in the resolution that could be used for the paving of the street, was Uvalde rock asphalt, on a six-inch concrete base. The bid of appellee to construct the pavement out of such material was accepted, and the pavement was laid on Live Oak street by appellee, under the supervision of the city engineer and in accordance with the specifications and requirements of the paving contract entered into with the city of Dallas.
At the proper time in the proceedings for the improvement of said street assessments were duly levied against the abutting property owners, in the manner provided by the Dallas city charter, and each property owner, including appellant, was duly notified in writing and through advertisement in a daily newspaper of such assessment, and also of the time and place for hearing protests by property owners. After this hearing, which closed May 12, 1926, an ordinance was duly passed fixing a personal debt against appellant in the sum of $2,012.58 for the paving of the 186 feet abutting on his property, and fixing a lien against such property to secure payment of same.
The paving certificate, issued by the city to appellee, conforms to the provisions of the city charter authorizing the issuance of such certificates, and contains all of the necessary recitals to make it, prima facie, a valid and subsisting claim against appellant and in favor of appellee. The certificate, among other things, provided for the discharge of the indebtedness by payment in six equal annual installments, but further provided that, if default be made in any of the installments, the holder of the certificate could declare all unpaid installments due. The indebtedness bore interest at the rate of 7 per cent. per annum. Appellant defaulted in the payment of the first and second installments, and appellee declared all installments due and instituted this suit before limitation had run on any installment.
Appellant became the owner of his property on Live Oak street in 1910. The city of Dallas duly caused a portion of said street to be improved with bitulithic pavement in 1912, levied an assessment against plaintiff in error for his proportionate costs of such paving, and fixed the same character of lien on the same property as that which defendant in error now claims for the amount assessed against plaintiff in error. Plaintiff in error paid this indebtedness, and the lien against the property was released. This paving was in good repair in February, 1926, at the time the paving in question was ordered, was adequate for any use of said street, and was in such condition of repair when defendant in error destroyed it for the purpose of laying the new pavement. There were only two city blocks, or relatively a small part of that portion of Live Oak street paved in 1926, that had been paved in 1912.
In 1926 the city of Dallas, in the exercise of its charter powers, widened Live Oak street by taking, through condemnation proceedings, from the property owners on the opposite side of the street from plaintiff in error's property a strip of land 10 feet wide. Plaintiff in error was not a party to the condemnation proceedings, for no part of his land was taken for such purpose, but he was assessed, on the ground of benefit to his property, the sum of $2,549.25, as his proportionate share in payment to the property owners whose property was actually taken, and this assessment was duly paid by plaintiff in error. The pavement of 1912 in front of plaintiff in error's property was 35 feet wide, and the crown of the street was fixed at said time along the center of this 35 feet. When the street was widened in 1925, there was left 10 feet on the opposite or north side of the street from plaintiff in error's property unpaved. The specifications prepared by the engineer for the 1926 pavement required pavement 45 feet wide in front of plaintiff in error's property, so as to include the 10 feet unpaved. The concrete gutter placed in front of plaintiff in error's property by the 1912 pavement was in good condition and adequate for its purpose.
The grade of the street was unchanged by the 1926 paving from the grade established in 1912. The city engineer directed the tearing up and destruction of the 1912 pavement and gutter in front of plaintiff in error's property, the laying of new pavement on the same grade of the street, and a new gutter in the same place of the old gutter. The grounds on which the city, through its engineer, seeks to justify the act of destroying the 1912 pavement and taxing plaintiff in error in the form of a special assessment for the new pavement is that, unless such repaving was done, the crown of the pavement, as fixed in 1912, would not be in the center of the widened street, would not conform to the crown of the new pavement as same had to be established on other portions of Live Oak street, and would thereby destroy the equal drainage on the sides of the street. No reason appears for the destruction of the old gutter. The destruction of the pavement and gutter in front of appellant's property was done over his protest.
Plaintiff in error, both in his pleading filed in his answer to defendant in error's suit and by assignments of error and propositions of law in his brief, contends that, by reason of the above-existing facts, he had such a property interest in the pavement of 1912 that it could not be taken or destroyed, except through the proper exercise of the powers of eminent domain resting in the city, and, as the city did not exercise such powers, but took and destroyed his property under its police or taxing powers, all of the proceedings as against him, from the adoption of...
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Farmers & Merchants Compress & Warehouse Co. v. City of Dallas
...for benefits resulting from the street opening. The weight of authority is contrary to appellant's contention. Gillespie v. Fuller Construction Co., Tex.Civ.App., 66 S.W.2d 798; City of Chicago et al. v. Union Bldg. Ass'n, 102 Ill. 379, 40 Am.Rep. 598; State v. City of Elizabeth, 57 N.J.L. ......
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Gilliland v. City of Fort Worth, 14375.
...page 95, of volume 116 of A.L.R.; City of Marshall v. Allen, Tex.Civ.App., 115 S.W. 849, writ of error refused; Gillespie v. Fuller Construction Co., Tex.Civ.App., 66 S.W.2d 798, writ of error refused. Art. 1175, Sect. 16, granting enumerated powers to home-rule cities provides that they sh......
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Bowdich v. City of Albuquerque
...same concept, that the power to pave is a continuing power and it is not exhausted when initially exercised. In Gillespie v. Fuller Const. Co., (Tex.Civ.App.1933), 66 S.W.2d 798, the court held that the charter which gave the city the power to improve 'any street * * * by filling, grading, ......
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City of Fort Worth v. Southwest Magazine, 16328
...abutting property owner has no property interest in curb taken up by city even though he had paid for the curb, Gillespie v. Fuller Const. Co., Tex.Civ.App., 66 S.W.2d 798, writ ref. It will be recalled plaintiff in the instant case did not build or pay for the In Bowers v. City of Taylor, ......