Langstaff v. Town of Durant

• Decision Date: 08 July 1916
• Docket Number: 18406
• Citation: 111 Miss. 818,72 So. 236
• Court: Mississippi Supreme Court
• Parties: LANGSTAFF v. TOWN OF DURANT

72 So. 236

111 Miss. 818

LANGSTAFF v. TOWN OF DURANT

No. 18406

Supreme Court of Mississippi

July 8, 1916

APPEAL from the chancery court of Holmes county, HON. A. Y WOODWARD, Chancellor.

Suit by the town of Durant against E. L. Langstaff and others. From a judgment overruling a demurrer to the bill of complaint defendant appeals to settle the principles of the cause.

The facts are fully stated in the opinion of the court.

Reversed and suit dismissed. Suggestion of error overruled.

W. B Banks and W. C. Wells, for appellant.

J. D. Guyton, for appellee.

OPINION

POTTER, J.

This is an appeal from the chancery court of Holmes county. The original bill in this case was filed by the town of Durant against E. L. Langstaff, a resident and property owner of said town, seeking to affix a lien on the property of appellant for the cost of a certain sidewalk laid by the municipality in front of his property, and for the enforcement of said lien, if necessary, by a sale of said property to satisfy same. The mayor and board of aldermen of the town of Durant passed certain resolutions, acting, as it believed, in compliance with the requirements of chapter 260, Laws of 1912, for the purpose of having concrete sidewalks laid in said town of Durant. The original bill of complaint filed had as exhibits thereto copies of the various ordinances passed by the board, attempting to follow the statutory proceeding for sidewalk improvement. Defendants filed a demurrer to said bill of complaint in which they set out several grounds for demurrer. This demurrer was overruled, and the chancellor allowed an appeal to this court to the defendant Langstaff for the purpose of settling the principles of the case.

The first ground of demurrer is that the original resolution declaring the improvement necessary does not sufficiently describe the character of said special improvement so as to enable the owner of the property to do the work himself. We think, however, that there was a substantial compliance with the provisions of the law in this respect. The resolution declaring the construction of the sidewalks necessary has incorporated in it Ordinance No. 98 of the town filed as an exhibit to the bill, and that ordinance is as follows:

"An ordinance prescribing specifications of sidewalks and requiring all persons putting down sidewalks to comply with same.

"Be it ordained by the mayor and board of aldermen of the town of Durant, Mississippi:

"Section 1. That all sidewalks hereafter constructed in said town shall be of brick or concrete material, and shall be five feet wide on all residence streets, and shall be built to the street line and of even grade so as to be of uniform grade, width and alignment.

"Sec. 2. That said sidewalks shall be constructed under the direction of the street commissioner, and when done according to his directions as to material, grade, width, and alignment, it shall be presumed that said sidewalks are constructed herein as provided."

We think this was sufficient. "It is sufficient to designate the material in general terms." 28 Cyc. 1002, and note 1 on page 1003. The specifications were sufficiently clear to have enabled the property owner to construct his own sidewalk, and that is the test.

The second ground of the demurrer is as follows:

"That the method of fixing the cost of assessment of sidewalks was not that prescribed by law, in that instead of the lot or piece of ground adjoining the sidewalk on the street or part thereof ordered to be specially improved was not assessed with the whole cost of improvements immediately in front of it for its entire frontage only, but in a manner contrary to law."

The manner employed in determining the assessment against each piece of property, as is shown by Exhibits D and E to the bill of complaint, as to add the cost of all the improvements made under the resolution above mentioned and prorate the cost in proportion to the number of lineal feet of sidewalk owned by each property owner to the entire number of lineal feet of sidewalk built. Section 16 of chapter 260, Laws of 1912, provides the method of fixing the cost of assessments for sidewalks, and is as follows:

"Method of Fixing Cost Assessments for Sidewalks.--If the special improvement be for the purpose of constructing or repairing a sidewalk, each lot or piece of ground adjoining the sidewalk on the street, or part thereof, ordered to be specially improved, shall be assessed with and be liable for the whole cost of the improvement immediately in front of it and for its entire frontage only; if the special improvement consist in constructing special improvements on a street, each lot or piece of ground adjoining that part of the street ordered specially improved, shall be liable for its proportion of the cost of the whole of such improvements for its entire frontage, in the manner to be hereinafter specified."

Under the provisions of this section, a proper method of ascertaining the amount to be charged against the individual property owner, when the special improvement is the construction or repair of sidewalks, is to assess the property with the whole cost of the improvement immediately in front of it and for its entire frontage. The method of assessment adopted in this case was not in accordance...