Oliver v. Water Works and Sanitary Sewer Bd., 3 Div. 697

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; LIVINGSTON
PartiesOLIVER et al. v. WATER WORKS & SANITARY SEWER BOARD et al.
Docket Number3 Div. 697
Decision Date27 May 1954

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.

[261 Ala. 235] 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 [261 Ala. 236] 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

Page 553

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...

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11 practice notes
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...that immunity in §§ 502--504. In 1954, this court, in discussing a dedicated street said in Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d '* * * It requires some distinct act by the city to constitute an acceptance, such as a formal resolution or by acts and conduct o......
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • May 30, 1980
    ...212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841." Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 236-237, 73 So.2d 552, Page 405 553-554 (1954). It is now fully recognized that the duty imposed upon cities to keep their public ways free of d......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...a legal duty to keep its streets and public ways reasonably safe for ordinary travel. Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552; City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324; Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793. An evaluation of th......
  • Beachcroft Properties v. City of Alabaster, 1041359.
    • United States
    • Supreme Court of Alabama
    • July 21, 2006
    ...the sanitary sewers in usable condition so as not to permit an unsafe condition to result." Oliver v. Water Works & Sanitary Sewer Bd., 261 Ala. 234, 237, 73 So.2d 552, 554 (1954) ("The city could not be held responsible for the exercise of a power it had no right to render."). See also Lon......
  • Request a trial to view additional results
11 cases
  • Jackson v. City of Florence
    • United States
    • Supreme Court of Alabama
    • July 10, 1975
    ...that immunity in §§ 502--504. In 1954, this court, in discussing a dedicated street said in Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d '* * * It requires some distinct act by the city to constitute an acceptance, such as a formal resolution or by acts and conduct o......
  • City of Prichard v. Kelley
    • United States
    • Supreme Court of Alabama
    • May 30, 1980
    ...212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841." Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 236-237, 73 So.2d 552, Page 405 553-554 (1954). It is now fully recognized that the duty imposed upon cities to keep their public ways free of d......
  • McCarroll v. City of Bessemer, 6 Div. 938
    • United States
    • Supreme Court of Alabama
    • September 28, 1972
    ...a legal duty to keep its streets and public ways reasonably safe for ordinary travel. Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552; City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324; Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793. An evaluation of th......
  • Beachcroft Properties v. City of Alabaster, 1041359.
    • United States
    • Supreme Court of Alabama
    • July 21, 2006
    ...the sanitary sewers in usable condition so as not to permit an unsafe condition to result." Oliver v. Water Works & Sanitary Sewer Bd., 261 Ala. 234, 237, 73 So.2d 552, 554 (1954) ("The city could not be held responsible for the exercise of a power it had no right to render."). See also Lon......
  • Request a trial to view additional results

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