Town of Ruston v. Adams

• Decision Date: 19 December 1928
• Docket Number: 3378
• Citation: 121 So. 661,9 La.App. 618
• Court: Court of Appeal of Louisiana — District of US
• Parties: TOWN OF RUSTON v. ADAMS

121 So. 661

9 La.App. 618

TOWN OF RUSTON v. ADAMS

No. 3378

Court of Appeals of Louisiana, Second Circuit

December 19, 1928

Rehearing Refused January 21, 1929.

Writ of Certiorari and Review denied by Supreme Court February 11 1929.

Appeal from the Third Judicial District Court, Parish of Lincoln. Hon. S.D. Pearce, Judge.

Action by the Town of Ruston against G. A. Adams.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

Judgment amended and affirmed.

Barksdale Warren & McBride, of Ruston, attorneys for plaintiff, appellee.

J. W. Elder, of Ruston, attorney for defendant, appellant.

OPINION

ODOM, J.

The defendant appeals from a judgment ordering him to pay to the Town of Ruston $ 651.20 as his pro rata charge for the paving of South Line street, said paving having been done by the town under the provisions of Act 187 of 1920 and Act 115 of 1922.

The facts, as they appear in the record, are that in the month of April, 1926, certain property owners presented a petition to the City Council reciting that they owned more than sixty per cent of the property fronting on South Line street, between Bonner and Vienna streets, in the said town, and asked that the town pave the same and that the work be done by the town without the formality of advertising for bids, and that the cost thereof be assessed ratably against the property abutting on said street.

Upon receipt of said petition, the town gave notice that such request had been made by publication in the local newspaper for more than thirty days, notice appearing in five consecutive issues of the paper. Not having received any protests or objections to the proposed paving, the City Council, on June 1, 1926, adopted Ordinance 219, ordering said street paved with reinforced concrete, in accordance with plans and specifications then on file, and ordering the Mayor to purchase the material and have the work done.

The paving was promptly done and accepted by the town, by Ordinance 228, adopted by the Council on November 2, 1926, in which ordinance the Council assessed the costs of the paving against the abutting property in amounts proportioned according to the frontage on the street--the amount assessed against defendant's property being $ 651.20. On November 10, 1926, a certified copy of Ordinance 228 was filed and recorded in the mortgage records of Lincoln Parish, in which the said property is situated. The defendant failed and, on demand, refused to pay the assessment, and this suit by the town followed on March 22, 1927.

The lower court gave judgment for the Town of Ruston and against defendant for the amount assessed against his property, decreeing that said amount should constitute a lien and privilege upon the abutting property.

Counsel for defendant, in brief filed in this Court, assigns the following errors:

1.

A personal judgment cannot be granted against defendant for a property or tax lien.

2.

There is no evidence in the record that defendant is the owner of the property described.

3.

That there is no evidence in the record that the property described fronts on either South Line street or South Line avenue.

4.

That the petition of the taxpayers asked that South Line street be paved, whereas the notice published designated South Line "Avenue."

5.

That the recital in the petition for the paving that the petitioners owned more than sixty per cent of the abutting property is untrue.

6.

That Ordinance 228 assesses the amount against all of his property, whereas it should assess the amount against the front lots only.

7.

That all the ordinances relative to the paving should have been promulgated by publication, which was not done.

8.

That there was no evidence that South Line street was ever legally acquired by the town.

We dispose of these assignments in the order named:

1.

The judgment was not intended to be personal against the defendant in the sense that the town could collect more from him than the value of the property against which the lien was assessed. The action of the City Council in assessing defendant's property with the cost of paving was in the nature of a proceeding in rem. Whatever liability there may be in this regard must be restricted to the property affected with the lien.

Town of De Ridder vs. Lewis, 139 La. 903, 72 So. 447; Barber Asphalt Paving Co. vs. John Watt, 51 La.Ann. 1345, 26 So. 70.

The Town of Ruston can never pursue the defendant for any amount beyond that which may be realized from a sale of the property against which the lien is assessed. To avoid all doubt, the Court, we think, should have limited its judgment to one in rem only.

2 and 3.

Defendant, in answer, admitted that he owns property on this street. His answer recites "that the heirs of J. W. Williams and defendant own 50 per cent of the lineal frontage on said claimed street." True, this allegation is followed by this: "Defendant denies that he owns any abutting property as claimed," but, construing the answer as a whole, it is evident that defendant did not intend to deny that he owned property on said street, and that the last quoted statement refers to his contention that as a matter of fact there was no street there, and, for that reason, he could own no property abutting upon it.

4.

The petition presented to the Council asks that said South Line street be paved, whereas the published notice specified "South Line Avenue." This deviation between the wording of the petition and that of the published notice did not prejudice defendant. There is no suggestion that there was a South Line street and a South Line avenue in Ruston. But, however, if there was, defendant was not misled because he stood by and saw the town paving the highway on which his property fronted and he made no protest or objection until this suit was filed, long after the work had been completed, and he had derived the benefits of the improvement, and only then, in defense of the action of the town to collect the assessment. If he had been in fact misled by the published notice, he had ample time in which to object after he saw the town paving the street.

5.

Defendant cannot now complain that the petition presented to the Council was not signed by property owners, owning 60 per cent of the abutting property. Notice of the application for the paving was published for more than thirty days. Act 115 of 1922 provides that: "after thirty days from the date of such publication or posting, all persons shall be barred from contesting the validity or sufficiency of the petition for improvement." Defendant offered no protest before the Council within thirty days or later against the validity or sufficiency of the petition. He is now forever barred from raising that point.

It was so held in McCutcheon vs. City of Shreveport, 157 La. 699, 102 So. 875, in which the Court said:

"Act 115 of 1922 is intended by the Legislature as a statute of repose and evidently has been enacted in the exercise of wise public policy."

The holding in this case was reaffirmed in McCutchen vs. City of Shreveport, 160 La. 986, 107 So. 775. The Act itself, and these cases, are clear that the property owner must make his protest within thirty days "or forever thereafter hold his peace."

6.

The judgment establishes a lien on the property of defendant abutting the street. Defendant urges the point that the lien should operate only against the front lots.

In the case of Barber Asphalt Paving Co. vs. John Watt, 51 La.Ann. 1345, 26 So. 70, the Court held that the lien extends only to lots fronting on the street paved "of the usual dimensions, according to subdivisions in that part of the city, and where squares have not...