Huntington Engineering Co. v. Gallaher
| Decision Date | 02 March 1926 |
| Docket Number | 5462. [*] |
| Citation | 132 S.E. 866,101 W.Va. 110 |
| Parties | HUNTINGTON ENGINEERING CO. v. GALLAHER. |
| Court | West Virginia Supreme Court |
Submitted February 16, 1926.
Rehearing Denied April 23, 1926.
Syllabus by the Court.
In an action in assumpsit, it is not reversible error to reject a special plea when the defenses set up thereby are provable under the general issue.
It is proper to charge a special assessment against a lot in the name of its record owner.
In an action to enforce the collection of assessment certificates unless it plainly and manifestly appears that the assessment proceedings were void, the validity of the certificates will be presumed.
Where the statute provides a specific remedy for the review and correction of special assessments, that remedy will generally be regarded as exclusive.
The authority conferred on the city of Huntington in chapter 11 Acts of 1921, to improve its streets, to prorate the costs of such improvements on a frontage basis, and to make assessments therefor personal charges against the abutting land owners, is not in violation of the Constitution of West Virginia.
Error to Circuit Court, Cabell County.
Assumpsit by the Huntington Engineering Company against E. W. Gallaher on street improvement assessment certificates. Judgment for plaintiff, and defendant brings error. Affirmed.
George S. Wallace, of Huntington, for plaintiff in error.
J. H. Strickling, of Huntington, for defendant in error.
In 1921 the city of Huntington caused a part of Norway avenue to be graded, curbed, and paved, and ordered payment therefor to be made by the abutting property owners on a front foot basis. The defendant owned four irregularly shaped lots abutting on the avenue. On December 13, 1921, the city levied assessments against the abutting property owners for the cost of the improvement. Among the assessments were three against defendant in the following amounts: $1,259.14 against tract No. 1; $1,903.03 against tract No. 2 (); and $1,941.18 against tract No. 3. Certificates for the several amounts so assessed against defendant were issued to the plaintiff on that date. These assessments were not paid, and in 1925 plaintiff recovered in an action in assumpsit in the circuit court of Cabell county a judgment against defendant for $5,396.18, the amount represented by the certificates, with the accrued interest.
The defendant pleaded non assumpsit, and tendered three special pleas, which were rejected by the trial court. These pleas (a) challenged the constitutionality of that part of the charter of the city of Huntington which made the defendant personally liable for the improvements, (b) alleged that on December 13, 1921, tract No. 1 was worth not to exceed $100 and tracts Nos. 2 and 3 not more than $500, and that the assessments were in excess of the benefits derived, and (c) charged that the assessments were therefore confiscatory of the defendant's property.
The case was tried before the court in lieu of a jury. At the trial the plaintiff filed the three paving certificates, and proved its ownership thereof and that the amount they represented, with accrued interest, was due and unpaid.
The defendant testified that he did not sign a petition to have Norway avenue paved, or make any contract with the plaintiff to do the paving; that on December 6, 1921, he executed a deed to one Azel Meadows for a part of the land he owned on the avenue; that after the execution of the deed all he owned on the east side of the avenue was "the 264 feet *** and the 61 feet in that little triangle, a part of the 407 feet on the west side of the road"; that the value of the 264 feet before paving was $50, and after the paving he would not "put it over $200 to $300;" that the triangular shaped lot of 61 feet on the east side of the avenue was worth $100 before paving, and after paving the witness "expected" it would be worth $300; that he sold "this little piece of 338 feet, together with this little piece here of 61 feet, which makes a total of 399 feet, for $1,700; that he meant he sold "the piece on the west side of the road and the piece on the east side of the road for $1,700; that the paving had not been done at the time he sold to Meadows; that he received no notice from the city that the paving would be done, but that he thought he saw the newspaper notices of the assessment. *** "I think I did; yes, sir, afterwards."
The deed to Meadows was filed by defendant and showed that the consideration for the two lots was $2,000, and that the grantee assumed the payment "of the street improvements." One of the two tracts conveyed is described as situate on the south side of the James river and Kanawha Turnpike, and extending 15 poles 7 links thereon, and the other as situate on the north side of the said turnpike, and extending 20 poles 12 links thereon. This deed was not recorded until January 26, 1922.
There was no cross-examination of the defendant, and at the close of his testimony his counsel avowed that he had at least two other witnesses who would testify to "the same facts as to the value of the land before the improvements, and the value of the land after the improvements," as were set out in the special pleas. The court sustained an objection to the introduction of this testimony. The defendant then filed a written offer of compromise, dated July 30, 1924, which was signed by the defendant, by Meadows, and by one E. L. Miller. The offer stated that the amount of frontage assessed in the three certificates was 1,070 lineal feet, which was to be paid for as follows: 170 feet by Miller; 400 feet by defendant; and 500 feet by Meadows. Miller's connection with the affair was not explained. The compromise was not consummated. At the close of the case the court struck out the evidence for defendant and found for the plaintiff.
The defendant alleges, but does not insist on, error in the rejection of his special pleas. The defenses raised in the special pleas were maintainable under the general issue. Sutherland v. Guthrie, 96 S.E. 61, 82 W.Va. 419, 421; Hurvitz v. Lopinsky, 114 S.E. 439, 92 W.Va. 21, 27. Under our practice his pleas should have been filed, but their rejection was not reversible error. Bank v. Freeman, 98 S.E. 558, 83 W.Va. 477, 479.
Defendant's brief contends that the questions involved in this case are questions of law, which it states as follows:
1. The deed to Meadows was not placed on record until January 26, 1922. Consequently the defendant was still the record owner of the property on December 13, 1921, the date upon which the assessment was made.
"In assessing property, the owner of record is presumably the true owner." Cooley, Taxation (4th Ed.) par. 1097.
Page and Jones, Taxation by Assessment, par. 888.
Assessors and boards of equalization in this state go by the record and are not required to make personal inquiry as to the ownership of property. It would be highly impracticable prior to an assessment for any assessment board to ascertain or to take cognizance of the many conveyances which do not come to record promptly. Under section 65 of the Charter of the City of Huntington (Acts of 1921, c. 11), defendant could have had this assessment corrected by the board of commissioners for the city. He could have impleaded Meadows in the present case. His own neglect and inattention are solely to blame that the judgment against him includes the amount recoverable from Meadows.
We therefore hold that the assessment against defendant for the improvements on the land sold to Meadows, made at the time the defendant was still the record owner of the lot, was a proper and legitimate assessment.
2. The law is well established that the right to make a special assessment against land for improvement is based on the theory that special benefits accrue to the land from such improvement. If there are no special benefits to the land, there should be no special assessment against it. It is equally well settled that an assessment in substantial excess of the benefits conferred by the improvement is, to the extent of such excess, unconstitutional. Norwood v. Baker, 19 S.Ct. 187, 172 U.S. 269, 43 L.Ed. 443; Holswade v. City of Huntington, 122 S.E. 449, 96 W.Va. 124, 134, 135; City of St. Marys v. Locke, 80 S.E. 841, 73 W.Va. 30, 36.
The evidence herein, however, is so unsatisfactory that a clear case of confiscation is not made out by the defendant. He does not claim to be acquainted with land values. His testimony does not purport to give the market values of his lots. He "expects" the land is "worth" certain amounts, or he would not "put it over" a certain estimate....
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