White v. City of Charleston

• Decision Date: 03 February 1925
• Docket Number: C. C. 338.
• Parties: WHITE v. CITY OF CHARLESTON.
• Court: West Virginia Supreme Court

126 S.E. 705

98 W.Va. 143

WHITE v. CITY OF CHARLESTON.

C. C. No. 338.

Supreme Court of Appeals of West Virginia.

February 3, 1925

Submitted January 20, 1925.

Syllabus by the Court.

It is within legislative power to require an abutting owner on a street in a municipality to file with the city an estimate of the damages which in his opinion he will sustain by reason of a proposed change of grade, such estimate to be made and filed within a designated time after notice, as a condition precedent to maintenance of suit for damages after the improvement is ordered and made; provided that the time designated is not so short as to deny the property owner a fair and reasonable opportunity to present his estimate and protect his remedy, and the requirement is not otherwise unreasonable and arbitrary.

Where such statute is pleaded in bar of an action for damages occasioned by change of grade, and it does not appear from the pleadings what length of time and opportunity plaintiff was afforded for filing estimate of damages (the statute only limiting the period in which the city may begin the work after service of notice on the land owner), the question of the constitutionality of the statute because of unreasonableness is not fairly raised and cannot be considered.

In pleading such statute as a bar, the plea should aver sufficient facts to show that the city in proceeding thereunder has not interpreted and applied the statute so as to render it unreasonable and arbitrary.

Action by Maria L. White against the City of Charleston. Trial court sustained plaintiff's demurrer to defendant's special plea and certified its ruling for review. Ruling affirmed.

A. M Belcher and R. G. Kelly, both of Charleston, for plaintiff.

H. D Rummel, of Charleston, for defendant.

LIVELY P.

The declaration is in case for damages to plaintiff's lot of land, caused by defendant in lowering the grade of the street on which it abutted.

Defendant filed a special plea in bar, to which plaintiff demurred. The trial court sustained the demurrer and certified its ruling for review.

The plea is to the effect that defendant, before it undertook to improve the street on which plaintiff's property abutted served upon her a notice embodying a resolution passed by the council declaring the necessity of permanently improving the street "as required by law" and the date set for the hearing of property owners with reference thereto; and thereafter an ordinance was introduced and passed by the city council providing for the improvement, and subsequently a contract was let for the work and the improvement duly made in accordance with the plans specifications, and profile prepared therefor, "as required by law"; that plaintiff did not at any time before the introduction and passage of the ordinance or prior to the paving and improvement file with the council any statement of damages which, in her opinion, she would sustain by reason of said improvement.

Evidently the plea relies upon and sets up the act of the Legislature in granting to defendant its municipal charter, and the expression "as required by law" refers to that act, although it is not pleaded; and we have held in Groves v. County Court, 42 W.Va. 587, 26 S.E. 460, that this court will take judicial notice of all such acts and resolutions of the Legislature, though local and private, as appear to have been relied upon in the court below. The briefs also refer to the "charter" of the city, and the argument is based on the constitutionality of the provision thereof. So we have searched for and found the charter act and its various amendments. The act, by section 63 (chapter 1, Acts 1915, Municipal Charter), among other things, provides that whenever it is deemed expedient to improve a street to be paid for in whole or in part by special assessment, the council shall so declare by resolution, and shall have on file for the inspection of all persons interested specifications, estimates, and profiles showing the proposed grade after completion with reference to the abutting property. The resolution is then published once a week for two successive weeks in two newspapers of opposite politics published in the city. By section 67 it is provided that at the expiration of the time for the giving and publication of the notices as provided in section 64, the council shall determine whether it will make the contemplated improvement, and, if so, by the passage of an ordinance setting out in detail the street to be improved, the character of the improvement, the plans, specifications, profiles, estimates, and the like, and setting forth the lots and lands abutting thereon, in a designated manner. Section 64 requires a notice of the resolution embodying it to be served on the owner of each piece of property to be assessed, or if the owner be a nonresident or not found, substituted service of the notice shall be by publication; and such notice whether by service or publication shall be completed at least three days before said improvement is begun or the assessment levied. By section 72 it is provided that--

"No person shall bring any action whatever in any court in this state for damage arising out of improvements or change of grade unless he shall have filed with the council at some time after the publication of the notice provided for in section 64, and before the time of the introduction of the ordinance providing for said improvement a statement of the damage which, in his opinion, he will sustain by reason of said improvement or the change of grade therefor, which statement shall be duly sworn to and be spread upon the minutes of said council."

Plaintiff asserts that section 72 is unconstitutional in that it violates section 9, art. 3, Constitution, and allows the city to damage private property for public use without just compensation; and violates section 10, art. 3, Constitution, in that it allows deprivation of property without due process of law. Plaintiff's counsel makes no criticism of the form or substance of the plea. The plea does not give the date of the resolution by which the council determined the expediency of the improvement, nor when the notice required in section 64 was published, nor when the notice was served on plaintiff, nor the date fixed by the council on which to hear her and other property owners in relation thereto; nor when the ordinance was introduced and passed by which the council determined to make the improvement as required by section 67, nor when the work was let or begun. It simply says that prior to the injuries and wrongs complained of in the declaration the council had determined the necessity of making the improvement and established grades; that the resolution was duly published, as required by law, and due notice of the passage and contents of the ordinance was served on plaintiff and the date set for hearing of property owners in reference thereto, and thereafter the ordinance was passed, and a contract was subsequently given for the work; and that plaintiff neither before the introduction or passage of the ordinance, nor prior to paving and improvement, had filed with the council her statement of damage which, in her opinion, she would sustain.

Is the statute in contravention of section 9, art. 3, of the Constitution? Does it deprive her from receiving or asserting damages...