Dix-Ferndale Taxpayers' Ass'n v. City of Detroit

Wiest, J. In this suit plaintiffs seek vacation of special taxes assessed against their several properties for widening Yernor highway in the city of Detroit. That highway was widened to 80 feet for a long distance east of Twenty-fourth street, and from Twenty-fourth street west the former street, with change of name only, was left at its width of 46 feet. The properties of plaintiffs are upon the part of the street west of Twenty-fourth street, and also upon a street that diverges therefrom at Waterman street. No property belonging to any of plaintiffs abuts upon the widened part of the street, yet they have been assessed in the aggregate $347,112.44, for benefits. Plaintiffs claim damage to their properties, rather than any benefit, because the widened street invites through traffic to the old and narrow part of the street where it congests. In the circuit court the bill was dismissed, and plaintiffs prosecute review by appeal. An ordinance authorizing widening the full length of the street was submitted to and adopted by the electors of the city. In pursuance of the ordinance, the city council.declared the widening necessary to Twenty-fourth street, and fixed the .assessment districts, inclusive of those here involved, and directed condemnation proceedings. The scheme submitted *393 to the electors contemplated the establishment of a wide thoroughfare, from the west city limits to the east. The part of the plan with which we are concerned stopped at Twenty-fourth street, and, if ever carried through, will go four miles west of that point to the city limits. The expense of the widening amounted to $4,556,400.39, of which the council fixed the sum of $2,278,200.19, to be paid by the city at large, and an equal amount upon the property, in varying proportions, in special assessment districts. After assessment, notice of review was given, and persons affected were afforded an opportunity to be heard. Objection was made on the ground that the assessments within the districts west of Twenty-fourth street were unjust, but no claim of actual fraud was then, or is now advanced, and the assessment rolls were confirmed. Plaintiffs do not attack the validity of the condemnation proceedings, but do claim that the subsequent levying of the special assessment upon their properties to pay a portion of the cost was illegal, because of a total absence of benefits, which the charter of the city makes a prerequisite to the levying thereof (Detroit Charter, tit. 8, chap. 1, § 2). The circuit judge filed an opinion fully reviewing the claims made by plaintiffs, and held that, in the absence of fraud or bad faith or of following of a plan incapable of producing reasonable equality, the judgment of the assessors must be held to be conclusive. This followed the holding in Marks v. City of Detroit, 246 Mich. 517, and aptly states the law with reference to assessments within legal districts. But in the case at bar, the complaint is that the whole scheme of including; .the properties of plaintiffs in special assessment districts was with *394 out warrant of fact or law, and, therefore, the assessments are wholly void. In Marks v. City of Detroit, supra, the assessment district was the portion of the city benefited by the improvement. In the case at bar the assessment district included only lots abutting on Dix and Fern-dale avenues. The first special assessment district zone extended from the opening of Twenty-fourth street through to Livernois avenue, and the amount assessed on that zone was 15 per cent, of the 1926 land valuation. The next zone was from Livernois to Waterman on Dix avenue. The assessment in that zone was approximately 10 per cent, of the 1926 land valuation. Then, where Vernor highway forks at Waterman, the north fork being the old Dix Road, and the south fork being Ferndale avenue, that was split into zones. The Dix avenue zone, or the old Dix Road, paying approximately one per cent, of the 1926 land valuation, and Ferndale avenue, from the intersection of Waterman through to Woodmere, was assessed at six per cent, of the 1926 land valuation. The depth of assessment districts, where the street was widened and where not widened, was approximately 100 feet. Every piece of property abutting on Dix and Ferndale constituted the assessment district, but not beyond the full depth of such property. The assessments were made on the basis of foot frontage on the highway. Until the highway is widened in front of property belonging to plaintiffs the assessment cannot be so made. If the widening of this street' is extended west, and such is evidently the intention as expressed by the electorate, then plaintiffs will again be assessed for benefits, for they will then receive obyious bene *395 fits. But it is without authority of law, and special taxation and not assessment for benefits, to compel them to pay now toward the widening if of no benefit to their properties. We need but say that all law limits special assessments to benefits, and no action can be legally taken otherwise. Property is accorded that much protection by the Constitution of the State. Defendant city stands upon the presumption of good faith, lawful action, and considerate creation of the assessment districts. Such presumption cannot withstand established facts to the contrary. Not that the honesty of any official is impugned, for such is not asserted, but it is asserted and established that unlawful districts were arbitrarily and capriciously fixed without benefits in fact, and such constitutes an unlawful levy in the eye of the law. If the common council was without power to place the properties of the plaintiffs in special assessment districts, then there has been no waiver, and the former protest may be renewed in a court of equity. The scheme of a wide cross-city thoroughfare has been partly carried out, but up to date stops short of the property of any plaintiff. The widening accomplished induces through traffic and creates a congested condition upon the old and narrow part of the street. Instead of being a benefit to property abutting the street where there has been no widening, it has been a decided damage, only to be relieved by future extended widening, and the benefits then accruing will be assessed. Benefits in the remote future, dependent upon extension of the widening, cannot be made the basis for present assessment of benefits, for, if the street *396 is widened at some future date, there will accompany it an assessment for benefits conferred thereby. The assessment districts west of Twenty-fourth street are without justification, in fact or law, and an arbitrary invasion of the property rights of the plaintiffs. The decree is reversed, and a decree will be entered here in accord with this opinion. Plaintiffs will recover costs. Clark, C. J., and McDonald, Fead, and Butzel, JJ., concurred with Wiest, J.