Oliver v. Water Works and Sanitary Sewer Bd.

• Decision Date: 27 May 1954
• Docket Number: 3 Div. 697
• Citation: 73 So.2d 552,261 Ala. 234
• Parties: OLIVER et al. v. WATER WORKS & SANITARY SEWER BOARD et al.
• Court: Alabama Supreme Court

Page 552

73 So.2d 552

261 Ala. 234

OLIVER et al. v. WATER WORKS & SANITARY SEWER BOARD et al.

3 Div. 697.

Supreme Court of Alabama.

May 27, 1954.

Rehearing Denied June 30, 1954.

Lea Harris, Montgomery, for appellants.

Walter J. Knabe, Montgomery, for appellees.

PER CURIAM.

This case pertains to matters considered in the cases of Water Works and Sanitary Sewer Board v. Dean, Ala.Sup., 69 So.2d 704, and Water Works and Sanitary Sewer Board v. Sullivan, Ala.Sup., 69 So.2d 709.

In the Sullivan case the trial court held that the charge was not authorized, and permanently enjoined the board from collecting it for sewer service. After the decree in question the legislature passed Act No. 176, approved June 30, 1953, which amended section 4 of Act No. 175, approved June 29, 1951, so as to cut out the limited exemption there referred to. The effect was to limit the injunction to apply no longer than June 30, 1953 when the amendment became operative. The charge was made by a resolution of the board passed and adopted by it (not an ordinance of the city commission) on August 15, 1952. So that we affirmed the principle that under said resolution, the charge was collectible after June 30, 1953, supra. Thereafter on September 15, 1953 the board passed another resolution to the same effect as that of August 15, 1952.

In the Sullivan case, supra, we noted that a sewer system laid in the public streets of the city, constructed by the city, was the property of the city regardless of whether the money used in paying for it was obtained by assessments for amounts not exceeding the increased value of the adjoining property by reason of the special benefits which would accrue to such property. And that the revenue so assessed and collected was in the nature of a tax and it was a special use of the taxing power of the city by legislative enactment, citing Armstrong v. City of Montgomery, 251 Ala. 632, 38 So.2d 862; sections 308, 601 to 646, Title 37, Code. We therefore referred to our case of Mitchell v. City of Mobile, 244 Ala. 442, 13 So.2d 664, and held that the revenue derived from such assessments is that of the city to be used by it for a special purpose when necessary and for general purposes when not necessary for the special purpose. Therefore, we drew the conclusion that the city, and consequently the board, had the right to make a charge for the use of its system when not prohibited by law. It is now expressly authorized by Act No. 176, approved June 30, 1953, General Acts 1953, page 229.

We are asked on this appeal to withdraw that feature of the opinion for that its error is illustrated when a subdivision for residential purposes is developed in the city by private owners who build and dedicate streets, and in those streets lay a system of sanitary sewers as well as storm sewers. The contention is that those sewers belong to such private individuals who may confer on the purchasers of residential lots the right freely and without charge to use the sewer system constructed by the subdivision promoters. But that right depends upon a veriety of circumstances: (1) Whether the city has accepted the dedicated streets; and (2) if not, whether the sewer system in question connects with that of the city or its disposal arrangement.

Referring to the first inquiry above, we note that an acceptance of the dedication of the streets is necessary for them to become public. Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506. The mere approval, as required by section 15, Title 56 as a condition to the recording of the plat under section 12, Title 56, Code, is not an acceptance of the dedication of such streets proposed for dedication by the plat. Tuxedo Homes v. Green, 258 Ala. 494, 63 So.2d 812; see, also, Title 37, sections 798, 799. It requires some distinct act by the city to constitute an acceptance, such as a formal resolution or by acts and conduct of the city authorities recognizing it as a dedicated street. After the city has accepted its dedication there are certain duties and responsibilities imposed by statute upon the city. They result from what is now Title 37 beginning with section 502. Prior to that enactment the upkeep of the streets was a governmental function and not a legal duty, except as otherwise provided by some special law. Albrittin v. Mayor & Aldermen of City of Huntsville, 60 Ala. 486. Thereafter it has been a legal duty, imposing responsibility upon the city for negligence in performing it. The power and authority to control streets was made the exclusive prerogative of the city, which created a corresponding and coextensive duty and therefore a civil liability for the consequences of a default therein. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A.1915F, 797; City of Bessemer v Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841.

On the basis of those cases liability of the city has been established in a great variety of circumstances which create dangerous conditions due to the failure of the city to exercise due care to keep the streets reasonably safe for all the purposes for which its dedication was accepted and completed. Under that duty a negligent default could cause an unsanitary condition for which the city would be liable. Otherwise stated, an acceptance of such streets offered for dedication would impose on the city the duty to use due care to keep the sanitary sewers in usable condition so as not to permit an unsafe condition to result; to keep the storm sewers also in such condition; to keep the streets and sidewalks in such condition. The city could not be held responsible for the exercise of a power it had no right to render. It would have no right to operate upon and service the private enterprise of an individual. And such individual would have no right to operate an enterprise in the public streets of a city without a permit from that city. Section 220 of the Constitution. The city could not be held liable for defects in the street unless it has control of the streets. The promoters may pave their proposed streets at their own expense; but when the city accepts a dedication the promoters lose control. The city then takes charge and section 220, supra, comes into operation.

From this it follows that when the city accepts the dedication of a street, then paved and having storm and sanitary sewers, it has complete control of those facilities. It is immaterial whether we would say that title of the physical properties thereby vested in the city, for certainly the complete control of them so vested. Ownership of the physical properties without the power to control its use would be immaterial. That is of course further emphasized if the sewer system thus taken over is connected with that of the city or uses its disposal facilities. But the status exists by an acceptance of the proposed dedication. Until the city has accepted such dedication, it can of course prohibit the connection of that system with its own, or can permit it on such terms as may be agreed on. And the right, duty and powers of the city as to the free use of such system may depend upon stipulation, and not upon the statutes, supra. MacMahon v. Baumhauer, 234 Ala. 482, 175 So. 299.

The foregoing discussion also answers the inquiry as to the status of such a system constructed by private individuals in streets already dedicated and accepted. It would immediately come under the control of the city and could not be lawfully constructed in the first place or...