Shute v. City of Monroe

• Decision Date: 07 May 1924
• Docket Number: 431.
• Citation: 123 S.E. 71,187 N.C. 676
• Parties: SHUTE v. CITY OF MONROE ET AL.
• Court: North Carolina Supreme Court

123 S.E. 71

187 N.C. 676

SHUTE v. CITY OF MONROE ET AL.

No. 431.

Supreme Court of North Carolina

May 7, 1924

Appeal from Superior Court, Union County; Shaw, Judge.

Action by J. T. Shute against the City of Monroe and James McNeely City Tax Collector. Judgment of dismissal, and plaintiff appeals. Affirmed.

The plaintiff is a resident of the city of Monroe and brings this action to permanently restrain and enjoin the said city and its tax collector, James McNeely, from levying upon his property for the purpose of collecting the assessment made against his property for the improvement of what is known as Charlotte avenue. The plaintiff is the owner of a piece of property in the city of Monroe, and contends: That without authority of law and against his protest the city of Monroe in July, 1922, appropriated a part of his property for a so-called street or roadway, from Crowell street to the right of way of the Seaboard Air Line Railway Company--a strip of land 70 feet in width a large part of the distance and 41 feet at its narrowest point. The land taken for the street was about one-third of the lot, and the balance was left useless for development, and practically worthless, without compensating the plaintiff for same. That after the street had been laid off and graded the city, without authority of law, declared an assessment district for said street from Crowell street to the city limits, and proceeded to pave the same. That no petition was filed by a majority of the abutting property owners, etc., in accordance with C. S. c 56, art. 9. That the so-called street is not properly a street of the city, but is a connecting link of the state highway system through the city, which is a city of more than 3,000 inhabitants according to the last United States census. That a considerable part of the streets of Monroe had been previously paved and hard-surfaced. That the only use or purpose of this improvement was to connect the state highway system with the city of Monroe, and as such no part is legally chargeable to the abutting property owners. That the assessment is illegal and confiscatory and is taking plaintiff's property without due process of law.

The defendants, on the other hand, contend: That the city of Monroe, during the year 1922, built a splendid street through the lot of plaintiff, on which he operates a public gin and mill, and the street has greatly increased the value of plaintiff's lot. That the city of Monroe declared an assessment district on the street, which it had opened through plaintiff's property, known as Charlotte avenue and paved said street from Crowell street to the city limits all of which was legally done. That under the provisions of law it was not necessary for a majority in number of abutting property owners to file a petition to have the street improved and paved. That the state highway commission did request and demand of the city to open and pave said avenue, and that the city of Monroe did open, improve, and pave said avenue in accordance with the demand of the state highway commission, and the improvement was made to connect the streets of the city with the Charlotte Highway, and provide for the safety and convenience of the public, and for the improvement of adjacent property. That the public interest demanded the street being opened and paved and the same was beneficial to adjacent property. That the city made the assessment against the plaintiff's property abutting on said street 1097 feet. That as a matter of fact the defendant owns a number of adjacent lots which constitute one large lot, and on this lot the plaintiff has erected a valuable gin and mill plant to which he solicits the patronage of the public; that this property of the plaintiff was formerly on a back street and difficult of access, and as a result of the improvements made by the defendant city of Monroe the said property has been placed upon a public and improved street, and has been increased in value by much more than the cost of the paving assessed against it. That the plaintiff is the owner of a large lot and a valuable ginning and milling plant near the old G. C. & N. Railway tracks in the city of Monroe. That prior to the year 1922 there was no approach to the defendant's property from the north of the city, from which he drew most of his patronage, except through a dangerous underpass under the property of the S. A. L. Railway Company, and through a narrow and rugged road or street. That during the year 1922 the defendant city of Monroe decided to improve said street by widening, straightening, and paving same, and by extending same in a direct course from the city limits to Jefferson street through the property of the plaintiff and directly in front of his splendid ginning plant; that this improvement was made as hereinbefore stated upon the demand of the state highway commission in order to funish the proper connecting link between the paved streets of the city of Monroe and the paved Charlotte Highway, but same was also demanded for the safety and convenience of the public and for the improvement of property in the city lying along said avenue. That as a result of the opening and widening, improving, and paving of said street or avenue a splendid paved street has been built by and through the plaintiff's property, and his business has been placed upon one of the principal avenues of the town, and the approach thereto has been rendered safe, whereas it was formerly dangerous, and his trade has been increased and his property has been enhanced in value by much more than the amount assessed against it. That the creation of the assessment district under which Charlotte avenue was paved was done openly and publicly, and the plaintiff stood by and saw said avenue paved through his property, and made no protest against the paving of same, but allowed his property to be benefited and improved by the paving of said street without protest on his part, and defendants are advised and believe that on account of his conduct, his silence, and his acquiescence he is estopped to question the validity of the assessment made against him for the paving of said street.

The plaintiff in reply contends that at all times he protested against the action of the city of Monroe in attempting to charge the improvement against him and the other property owners.

The defendant contends:

That "some time in the month of October, 1922, it was ascertained that the city of Monroe would not be able to pave Charlotte avenue in the manner ordinarily pursued by the city in the paving of its streets, and that the city would be unable to carry out its promise to pave Charlotte avenue to connect with the national highway except in accordance with the provisions of section 16, c. 2, of the Public Laws of 1921, and upon this fact appearing to the state highway commission the said Commission addressed to the mayor of the city of Monroe a letter dated October 11, 1922, directing the city of Monroe to improve the said Charlotte avenue pursuant to section 16, c. 2, of the Public Laws of 1921, and that thereupon the city of Monroe proceeded to order said Charlotte avenue paved, and the cost thereof taxed against abutting property, pursuant to section 16, c. 2, of the Public Laws of 1921; that the plaintiff took no steps to hinder or delay the paving of Charlotte avenue, but on the contrary allowed the paving to proceed, and acquiesced therein and accepted the benefits thereof, and made no protest until after the said paving was done and the plaintiff's property was benefited thereby; that the road commission of Union county paid the sum of $4,289.37 for grading Charlotte avenue from Crowell street to the city limits, and that this sum was included in the amount taxed against the abutting property owners, but defendants aver that since the institution of this action they have eliminated the said item of $4,289.37 from the amount taxed against abutting property, and have amended the assessment roll in accordance therewith, and have decreased the amounts assessed against the abutting property owners proportionately."

On October 11, 1922, Frank Page, chairman, state highway commission, addressed the following communication to J. C. M. Vann, mayor of Monroe:

"You are hereby advised that it is found necessary by the state highway commission of North Carolina to connect the state highway system with the streets of the city of Monroe, and that, pursuant to the authority vested in the said state highway commission by section 16, Public Acts of North Carolina, Session 1921 you and the other municipal officials of the city of Monroe are hereby directed and commanded to cause to be improved and hardsurfaced all of the present unimproved portions of Main street, along Jefferson street to Charlotte avenue, and thence to the city limits, or, in other words, all of the portion of the state highway traversing the corporate limits of the city of Monroe, the entire cost of construction of said streets traversed by the state highway, to be borne by the city of Monroe.

You are further advised that it is the sense of the state highway commission that this particular and highly important and necessary construction does not constitute an 'extraordinary case,' as contemplated by the second paragraph of the section above referred to.

Under the further provisions of the section of said act, as above referred to, you are further and hereby commanded, through the governing body of the city of Monroe, to declare an assessment district as to the streets to be improved as above indicated, such work to be completed within six months from the first day of November, 1922."

The following resolutions were unanimously adopted by the board of aldermen of the city of Monroe:

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