Partee v. Cleveland Trinidad Paving Co.

• Citation: 172 P. 945,70 Okla. 31,1918 OK 274
• Decision Date: 07 May 1918
• Docket Number: 8851.
• Parties: PARTEE v. CLEVELAND TRINIDAD PAVING CO.
• Court: Supreme Court of Oklahoma

172 P. 945

70 Okla. 31, 1918 OK 274

PARTEE v. CLEVELAND TRINIDAD PAVING CO.

No. 8851.

Supreme Court of Oklahoma

May 7, 1918

Syllabus by the Court.

When a city acquires jurisdiction by the proper preliminary proceedings to pave certain of its streets, the owner of property within the improvement district who sees such improvements made with the knowledge that the city authorities intend to levy and collect a special tax against his property, and that those who do such work cannot be compensated in any other way, and fails to prosecute a suit testing the validity of the ordinance creating the paving district or an assessment made thereunder within the time provided by the charter of the city enacting said ordinance cannot thereafter maintain an action to enjoin the collection of the assessment against his property on the ground of alleged irregularities.

Commissioners' Opinion, Division No. 3. Error from District Court, Tulsa County; Conn Linn, Judge.

Action by the Cleveland Trinidad Paving Company against L. P Partee. Judgment for plaintiff, and defendant brings error. Affirmed.

G. W Hutchins and Gregg & Martin, all of Tulsa, for plaintiff in error.

Randolph, Haver & Shirk, of Tulsa, for defendant in error.

HOOKER C.

This action was brought by the defendant in error to foreclose a certain tax bill issued by the city of Tulsa to it, same being designated as special tax bill No. 2190, in street improvement district No. 52-A, and alleged to be a first and prior lien against all that part of lot 1 in block 54 lying westerly of the westerly line of the right of way of the Missouri, Kansas & Texas Railway in said city.

The answer of the plaintiff in error sets up two defenses against this action, namely: (1) That the resolution providing for the improvement in said district and the ordinance passed in pursuance thereof included not only the grading, curbing, paving, and guttering of the street, but included as well the construction of the catch-basins at the intersections of the streets and the storm sewer drainage, which under the law the plaintiff in error contends cannot be combined in one assessment, but must be made under separate ordinances and by a separate and distinct proceeding as provided by the provisions of the charter of the city of Tulsa and the statutes of the state of Oklahoma; (2) that all of the improvements placed in Archer street under the resolution and ordinance involved here, consisting of grading, curbing, and guttering, were made upon that portion of Archer street and Greenwood avenue occupied by the right of way of the said railroad company where the same crosses Archer street, with the exception of a small portion of the intersection formed by the crossing of Archer street and Greenwood avenue, and that all of the cost of said grading, curbing, guttering, and paving of the right of way of said company, which right of way was 100 feet wide and entirely across Archer street, with the exception of 2 feet on the outside of the track of said railroad company crossing said street, was in fact taxed against the property in the abutting blocks, and as a result thereof one-half of the cost of making said improvements was taxed against the north half of block 54 in said city, which included the fractional part of lot 1 owned by the plaintiff in error.

The record herein discloses that Archer street runs east and west and Greenwood avenue north and south; that blocks 46 and 54 are west of Greenwood avenue; and that said blocks are separated by Archer street. Lot 1 in block 54 fronts north on Archer street 140 feet and east on Greenwood avenue 100 feet. The right of way of said company as found by the court takes a triangular piece of ground out of the northeast corner of lot 1 of about 81 feet facing on Greenwood avenue and 75 feet facing north on Archer street.

It appears further from the evidence that the improvements in district No. 52-A involved in this action commenced at the westerly line of the right of way of the said company and extended easterly on Archer street, and it is contended by the plaintiff in error that his property involved here, that is, that part of lot 1 in block 54 not occupied by the right of way of said company, does not abut any of the improvements made in said district No. 52-A, but it is conceded by him that his property is liable for a certain part of said improvements caused by the improvements at the intersection of Greenwood avenue and Archer street for catch-basins and storm sewer drainage.

Upon the trial of this cause in the court below the court made the following findings of fact:

"That all of that portion of Archer street lying west of the center of the alley running north and south through blocks 54 and 46 of the city of Tulsa up to the intersection of the west line of the right of way of the Missouri, Kansas & Texas Railway had been paved under a prior ordinance, and its portion of the cost thereof assessed against lot 1 in block 54, belonging to the defendant; that of the paving done under the ordinance providing for the improvement of Archer street by paving the unpaved portion of said street from the east intersection of Archer street and Greenwood avenue westerly to the center of the alley running north and south through blocks 54 and 46 of the city of Tulsa, and under which tax certificate No. 2190 was issued, 100 feet of the said paving on said Archer street was included within the right of way of the Missouri, Kansas & Texas Railway Company, and should under the city charter have been taxed and assessed against said railroad company.

The court further finds from the proof offered that a portion of the improvements of the intersection formed by the crossing of Archer street and Greenwood avenue were properly taxable against the property in the northeast quarter of block 54, and that some portion of the expense of said improvement of said intersection was properly taxable against lot 1, the property of the defendant.

The court further finds that proper notice was given of the making of said improvements and the apportionment of the costs; that the defendant, L. P. Partee, appeared and filed his protest with the city commissioners of the city of Tulsa, protesting against the apportionment of the cost of said improvements made by said city and assessed against his property, being lot 1 in block 54 of the city of Tulsa, and that a hearing was had thereon before the city commission holding against said defendant; that the said L. P. Partee failed and neglected to appeal from the decision of the commissioners of the city of Tulsa and from the apportionment made by them, upon which apportionment certificate No. 2190 was duly issued.

The court further finds that under the charter of the city of Tulsa that portion of the cost of paving of the right of way of the Missouri, Kansas & Texas Railway Company should be assessed against the Missouri, Kansas & Texas Railway Company.

The court further finds that because of the failure of the defendant, L. P. Partee, to prosecute his appeal from the decision of the city commissioners in making the apportionment of the expense of the improvements on Archer street, as made by them, and upon which the certificate No. 2190 was issued by the city of Tulsa to the paving company, the rights of the holder of said certificate have become absolute, and the defendant, L. P. Partee, is estopped from questioning the validity of said apportionment, because he did not prosecute his appeal within ten days thereafter as provided by the city charter, and that he cannot in this proceeding try out the question of the equitable or inequitable apportionment made by the city of Tulsa of the expense of said improvement on Archer street and upon which apportionment certificate No. 2190 was issued.

The court further finds that under the facts as proven and the law applicable thereto plaintiff is entitled to recover judgment against the defendant, L. P. Partee, for the amount due on said certificate No. 2190, and that the same is a first lien on all the right, title, estate, and interest of the defendant, L. P. Partee, in and to lot 1 in block 54, original town, now city, of Tulsa; that the plaintiff is entitled to a foreclosure of its lien and to an order for the sale of said property to secure its said judgment in event the same is not paid."

It is now asserted that the court did not properly apply the law to the facts as found by the court in the trial of said cause; that under the provision of section 14 of article 9 of the charter of the city of Tulsa it is mandatory and compulsory upon the city to tax the entire expense of the improvements of this nature on the right of way against the railway company; and that under the provisions of the charter the city had no authority or right to apportion the expense therefor to private property abutting the street crossed and occupied by said right of way, but that the entire cost thereof must be paid by the railway company, and no part can be assessed against the abutting property.

The provisions of the charter applicable here are as follows:

"Sec. 4. The cost of grading, paving, curbing, and guttering any street, avenue, or alley may be paid in part by the city or in part by the owners of property benefited by such improvement and abutting upon the property, street, or alley or portion thereof ordered to be improved, and any

...