Nugent v. City of Jackson

• Decision Date: 27 May 1895
• Citation: 18 So. 493,72 Miss. 1040
• Court: Mississippi Supreme Court
• Parties: W. L. NUGENT ET AL. v. THE CITY OF JACKSON

18 So. 493

72 Miss. 1040

W. L. NUGENT ET AL. v. THE CITY OF JACKSON

Supreme Court of Mississippi

May 27, 1895

FROM the chancery court of the first district of Hinds county. HON. H. C. CONN, Chancellor.

Appellants are seized and possessed as joint tenants of the south half of two-acre lot five, north, in the city of Jackson Mississippi, the same being occupied by them as a residence. The lot fronts on State street, on the east, one hundred and sixty feet, and runs back west three hundred and twenty feet to President street, being bounded on the south by High street.

On June 7, 1893, the mayor and board of aldermen of said city of Jackson passed the following ordinance:

"SECTION 1. Be it ordained by the board of mayor and aldermen of the city of Jackson, that improvements which require unusual outlay, and costs in excess of the general improvement funds to the city, are necessary in the building of sidewalks along the south side of Barksdale street; along the north side of High street, from Jefferson to West street; along the south side of Asylum street, from State to President street; along the west side of President street, from Fortification to High street; along the east side of Roach street, from the A. & V R. R. to Capital street; along the south side of Capital street, from the east side of I. C. Enoch's property to Minerva avenue; along the south side of College, from Jefferson to State street; along the north side of College street, from State to North street; and along the east side of Gallatin street, from Pearl street to the corner of George Lemon's property; and the footways, or sidewalks, along said streets above mentioned and described are hereby declared to be public nuisances, and said nuisances shall be abated by the owners of the lots of land lying along and adjoining and fronting and abutting on said streets and footways and said sidewalks by the building of suitable and proper sidewalks, as required in the next section of this ordinance.

"SEC 2. The owner of each of the several lots of land lying alongside, fronting or abutting on the footways or sidewalks on the several streets described in the first section of this ordinance, is hereby ordered and required, at his or her own expense, to grade, construct and hereafter keep in good repair, a sidewalk along the entire side or front of his lot or lots, so fronting, lying along or abutting on the said streets, within twenty days after this ordinance becomes operative; provided, that if the owner of any lot shall have heretofore constructed a sidewalk of brick along his lot in substantial compliance with the requirements herein, and keeps the same in repair, it shall be deemed a compliance herewith. Said sidewalks shall be of uniform width along said streets, and so graded as to make an even, smooth footing inclined upwards from the outer edge towards the lot, one inch to each three feet, and shall be closely paved with well-burnt brick. They shall conform in grade, width and appearance, as near as practicable, to adjoining brick pavements and sidewalks. If any owner or owners of any lot or lots lying along, fronting or abutting on said streets and sidewalks, shall fail or refuse to construct such sidewalk as is herein required, within said time, the street commissioner shall, after the expiration of said twenty days, and after giving five days' notice to the owner or occupant of the lots in front of or along which no sidewalks have been constructed as above required, proceed, at the expense of the city, to have said sidewalks constructed as above required, under the cheapest and best contract possible, and he shall keep a strict account of the actual cost of making said improvement along or in front of each lot, and shall make an accurate report of the said costs to the mayor and board of aldermen at the next regular meeting after the completion of the work, for their approval; and special assessment of the said costs, with ten per cent. interest additional, shall be made against the lot or lots so improved, each lot to be assessed in proportion to the number of feet alongside or in front of which the walk is laid.

"SEC. 3. That this ordinance take effect and be in force from and after its passage."

Appellants, after being notified, having failed to construct the sidewalk on the south side of their lot, the city authorities proceeded to construct the same in pursuance of the ordinance. On November 30, 1893, after the sidewalk had been nearly completed, the appellants filed this bill in the court below, to enjoin the city from doing the work. The bill averred that the sidewalk was being constructed without their consent; and against their objection; that the same was of no benefit to them, and they protested against its being put down at their expense. It further averred that the ordinance under Which the improvement was sought to be made was illegal, unreasonable, and void, and that complainants, within twenty days after the passage of the ordinance, had duly filed their written protest against the construction of the sidewalk. The city answered the bill, asserting the legality of the ordinance, and averring that the sidewalk in question was a necessary public improvement. The answer also denied an allegation of the bill that the sidewalk constituted a part of the lot of complainants, and averred that it was a part of the public street.

After testimony taken, a motion was made by defendant to dissolve the injunction on bill, answer and proofs. The motion was sustained, and from a decree dissolving the injunction, complainants prayed and obtained this appeal. The evidence showed that the inclosure of complainants, on the south side of their lot, was not in line with the street as surveyed, but that the fence inclosed all the land called for in complainants' deed, and that the land on the south side, where the sidewalk was laid, had been on the outside of the inclosure, and considered a part of the highway about fifty years, though there had only been a dirt walk at this point, which was not much used by the public, this being a side street. Appellants had laid a sidewalk in front of their property on State street, and their testimony tended to show that the walk on the south side would not benefit their property. The opinion contains such further statement as is necessary for the understanding of the questions decided.

Affirmed.

Nugent & Mc Willie, for appellants.

All that is said in the ordinance about a nuisance is put in as a cover for the exercise of unwarranted jurisdiction. If there was a nuisance, no notice was ever given appellants to abate it. But it is absurd to assume that a dirt sidewalk could be a nuisance. It cannot be seriously contended that the authorities of a town can, by arbitrary ordinance, destroy private property as a nuisance, unless, on proper notice, it is shown to be such by its location or the sanitary conditions surrounding it. 42 Miss. 493; 10 Wall., 505; 23 Am. R., 609; 16 Am. & Eng. Enc. L., 937; 1 Dill. on Mun. Cor., § 308.

There has never been a general assessment of the property under § 2926, code 1892. Section 2944 empowers the city to cause to be constructed and maintained sidewalks, to determine materials and plans therefor, and to collect taxes by special assessment for payment of same. The ordinance in question was not adopted under this section, and, therefore, it is not to be considered. The language used in the title and in the first section of the ordinance places justification upon § 3011, code 1892. Appellants took advantage of this statute, and filed their protest against the improvement. Unless the court is to alter the purport of the ordinance, and do that which was not attempted to be done by the authorities, the decree should be reversed.

Appellants agree that the rule as to sidewalks in front of one's residence, on a public street, in general allows municipal authorities to compel the owner to lay the walk at his own expense. This rests upon the predicate that the property is benefited, and that all owners of lots along the same street must contribute to the improvement. In the able opinion in Macon v. Patty, 57 Miss. 378, this court stated that the owners of property sought to be taxed, must be consulted before action is taken against them, even in the case of sidewalks in front of lots. The appellants have laid the sidewalk in front of their lot. The ordinance in question requires them to build a sidewalk three hundred and twenty feet long on the side of their lot. In this they are not interested, nor is it a benefit to them or their lot. On the contrary, it detracts from the enjoyment of their property. It diminishes the value of the lot by destroying the privacy of the premises. In Macon v. Patty it is stated that the improvement of a sidewalk in front of the lot may be imposed as a police duty. That doctrine has no application, because the owners here were given twenty days within which to file a protest, which involves the idea of consultation and consent.

Opposite counsel, in the court below and here, have steered away from § 3011, under which the ordinance was passed, and attempt to justify the action of the city under § 2944. Section 3012 provides the character and extent of the special assessment authorized to be made, but it was wholly ignored in the adoption of this ordinance.

The power conferred by § 2944 of the code is vast in its scope. If its exercise rests wholly in the discretion of the authorities, to what extent may they not go? The vital question in this case is this: Can the city, for the benefit of the public, even under § 2944, impose upon appellants, without notice or opportunity to be heard, the burden of laying a brick sidewalk, three hundred and twenty feet...