Goodman v. City of Birmingham, 6 Div. 784.

• Decision Date: 11 June 1931
• Docket Number: 6 Div. 784.
• Citation: 223 Ala. 199,135 So. 336
• Parties: GOODMAN ET AL. v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

135 So. 336

223 Ala. 199

GOODMAN ET AL. v. CITY OF BIRMINGHAM.

6 Div. 784.

Supreme Court of Alabama

June 11, 1931

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by W. O. Goodman and Mamie Goodman against the City of Birmingham. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded.

W. A Jacobs, of Birmingham, for appellants.

Wilkinson Burton & Wilkinson, of Birmingham, for appellee.

BOULDIN J.

The suit is against a municipality to recover consequential damages resulting to an abutting property owner by reason of street improvements. Such cause of action is declared by section 235 of the Constitution of Alabama. Harris v Town of Tarrant City, 221 Ala. 558, 130 So. 83; Birmingham v. Evans, 221 Ala. 381, 129 So. 50.

Under plea in short by consent the city set up the proceedings for the assessment of the cost of such improvements against abutting property as res adjudicata of the issue here presented. These proceedings, conducted as per statute resulted in an assessment of this lot, the residence lot of the plaintiffs, for special benefits derived from such improvement in the sum of $32.42.

In making such assessment, the city commission acts judicially. The question of special benefits to abutting property involves a consideration of consequential damages of this character, and an adjudication that some amount is assessable against the abutting property, and the assessment made final, such judgment, standing unvacated or reversed, is res adjudicata and a bar to an action for consequential damages. Ex parte Gudenrath, 194 Ala. 568, 69 So. 629; Town of Tarrant City v. Pope, 221 Ala. 662, 130 So. 390.

Some controversy is presented as to the validity of the assessment by reason of objections filed on the day set for hearing. On this point it is sufficient to say such objections under Code, § 2196, as amended by Acts 1927, p. 765, § 25, may be filed "at any time on or before the date named," or "at said meeting" had pursuant to published notice under Code, §§ 2192, 2193, and 2194, as amended by Acts 1927, p. 764, §§ 21-23. Under this statute, objections filed with the clerk on the afternoon of the day set for hearing, but after the hour set for hearing, and after the city commission has made its order confirming the assessment, and adjourned, come too late. However, the commission had power to reopen the matter and hear objections so filed. There was parol evidence received without objection tending to show that at a later date the city commission did consider the matter and made an order vacating this assessment.

With this evidence in, the affirmative charge was improperly given for defendant on the theory of res adjudicata or estoppel.

It appears that prior to this improvement, plaintiffs' residence lot abutted upon Talladega street. The lot is triangular, the north and south boundaries converging at the east end to a frontage of 21.7 feet on Talladega street. The street terminated at the south boundary line of this lot extended.

By the improvement in question the direction of the street was changed. Beginning at a point about 100 feet north of the terminus of Talladega street, it was curved eastward and made to pass in front of plaintiffs' property some 60 feet east of the property line. Assuming the fee in the lot extended to the middle of old Talladega street, the new street, Avenue T, is some 30 feet distant at its nearest point. The improvements include curb, gutter, and sidewalk along Avenue T. Vehicular travel over Talladega street to the front of plaintiffs' property is thus cut off.

Plaintiffs' lot does not about on the improved portion of the street.

Local assessments for street improvements are limited to property...