Jones v. City of Durham

ClaeicsoN, J. Question inv'olve’d: (1) Will a local improvement petition, required by C. S., 2707, signed by the Southern Railway Company, an abutting owner, which made a majority of all the lineal feet frontage (no question as to their being a majority in number of the owners), the assessment against said railway the city of Durham assumed to pay in a mandamus proceeding to force said railway and others to build an underpass, render an assessment thereunder void as to other abutting property owners in the area who did not sign but had notice of the proceeding, under C. S., 2705, 2712? We think not. See Public Laws 1915, chap. 56, sec. 5; C. S., 2703 et seq. C. S., 2707, is as follows: “The petition for a local improvement shall be signed by at least a majority in number of the owners, who must represent at least a majority of all the lineal feet of frontage of the lands (a majority in interest of owners of undivided interests in any piece of property to be deemed and treated as one person for the purpose of the petition) abutting upon the street or streets or part of a street or streets proposed to be improved. The petition shall cite this article and shall designate by a general description the local improvement to be undertaken and the street or streets or part thereof whereon the work is to be effected. The petition shall be lodged with the clerk' of the municipality, who shall investigate the sufficiency thereof, submit the petition to the governing body, and certify the result of his investigation. The determination of the governing body upon the sufficiency of the petition shall be final and conclusive.” In construing this section, this Court said in Gallimore v. Thomasville, 191 N. C., at p. 650: “The statute, C. S., 2707, provides that the determination of the governing body upon the sufficiency of the petition *132 for local improvements shall be final and conclusive. In Tarboro v. Forbes, 185 N. C., 59, this Court held that where it appears up.on the face of the petition, as a matter of law, that the signers of the petition do not represent a majority of the lineal feet of the total frontage on the street, proposed to be improved, the determination of the governing body as to the sufficiency of the petition is not final or conclusive. In that case, the petition was held insufficient to support assessments, because it appeared upon the face thereof and from the order of the board of town commissioners, that the lineal feet of the frontage of the 'Town Common’ had been excluded in determining the total of the frontage on the street, proposed to be improved. It was held that said frontage should have been included, as a matter of law, and that inasmuch as the total number of signers did not represent a majority of the lineal feet of frontage, including the frontage of the 'Town Common,’ the petition was not sufficient. . . . (Gallimore case.) As to whether the number of persons owning lands fronting on said street was twenty-five or twenty-six involves only a question of fact; insofar as the sufficiency of the petition, authorized to be filed under C. S., 2707, involves only questions of fact, the determination of the governing body, in the absence of fraud, and when acting in good faith, is final and conclusive. . . . The fact that -there were twenty-six, and not twenty-five, persons who owned the lands fronting on the street proposed to be improved, was not called to the attention of the city council until after the improvements had been made and the expense for the same been incurred. The sufficiency of the petition could not then be called into question for that a majority of the landowners had not signed same. That fact had been conclusively determined by the city council, acting in good faith, before the improvements had been ordered.” In City of Charlotte v. Brown, 165 N. C., 435, it is held: “Where a municipality levies a special tax for street improvements upon the land of an abutting owner in excess of that allowed by a statute applicable, the excess is a nullity and may be enjoined; and where the limitation prescribed is a certain per cent of the taxable value of the property, that valuation must control, whether the property lies upon one or several streets.” Winston-Salem v. Coble, 192 N. C., 776; Winston-Salem v. Ashby, 194 N. C., 388; Flowers v. Charlotte, 195 N. C., 599. In the above cases the matter was jurisdictional and the proceeding void and the remedy by injunction permissible. C. S., 2714, is as follows: “If a person assessed is dissatisfied with the amount of the charge, he may give notice within ten days after such confirmation that he takes an appeal to the next term of the Superior Court of the county in which the municipality is located, and shall within five days thereafter serve a statement of facts upon which he *133 bases bis appeal, but the appeal shall not delay or stop the improvements. The appeal shall be tried at the term of court as other actions at law.” Under this section if the plaintiffs desired to attack the assessment when levied against their property, the statute gives the remedy. Brown v. Hillsboro, 185 N. C., 368; Gunter v. Sanford, 186 N. C., 452; Leak v. Wadesboro, 186 N. C., 683; Mfg. Co. v. Commissioners of Pender, 196 N. C., 744. C. S., 2705, provides publication of resolution or notice. C. S., 2706, when petition required; 2708, what resolution shall contain; 2709, character of work and material; 2710, assessments levied; 2711, amount of assessments ascertained; 2712, assessment roll filed, notice of hearing; 2713, hearing and confirmation, assessment lien. Everything was done by defendant as required by the statute. The court below found as a fact that “the plaintiffs had full opportunity to appear and protest when the assessments were subsequently made, which they failed to do.” The work was done after plaintiffs had notice as required by the statute. The whole matter, on the face, was regular and in compliance with the statute. Plaintiffs’ remedy, if they had any, was under C. S., 2714. They cannot now complain. The proceeding was not void. In Charlotte v. Alexander, 173 N. C., 515, it is held: “Abutting property owners who have contracted with a municipality that the latter exceed its statutory authority in assessing their lands beyond a certain per cent of their value for street improvements, and to give it a written waiver of such rights, are estopped to deny the validity of the contract by accepting its benefits, and the ‘waivers,’ when obtained, are en-forcible by the municipality.” In re Assessment v. R. R., 196 N. C., 756. Question two: Did the Southern. Railway Company, an abutting owner in the area, have the right to sign the petition and rely on the city of Durham to perform its agreement with said railway to pay for same in the mandamus proceeding against said railway requiring it and others to build an underpass? We think so. The Municipal Finance Act, C. S., 2942 (r), implies not only that a city may bear a part of the expense incident to the elimination of grade crossings, but may issue bonds therefor, this section providing that bonds may be issued by a city as follows, for that purpose: “The elimination of any grade crossing or crossings and improvements incident thereto, thirty years.” R. R. v. Goldsboro, 155 N. C., at p. 362; Durham v. R. R., 185 N. C., at p. 245. The agreement was legal and binding on the city of Durham. In the mandamus proceeding the judgment contained the following: “The city of Durham agrees to do all underground work, such as the *134 relaying and replacing of water, gas and sewerage mains, street paving including curbs' and gutters .and also sidewalks.” This agreement was binding on tbe city of Durham. It had the power to make it. This agreement was part of the judgment in the mandamus proceeding which required the underpass to be built by the railroads. See Argentine v. Atchison, etc., R. R., 30 L. R. A., p. 255; Woodruff v. Catlin, 54 Conn., 277; Westbrook’s App., 57 Conn., 95; Fairfield’s App., 57 Conn., 167; N. Y. & N. E. R. Co.’s App., 58 Conn., 532; and cases cited in the notes to the case of Kelly v. Minneapolis, 26 L. R. A., 92. Third question: Was there any fraud practiced by the municipality ? We think not. The court below found “the city of Durham had a right to require said Southern Railway Company to sign such petition for the frontage occupied by its right of way, and when so signed, the governing body of the city had a right to consider such signatures in determining the sufficiency of said petition, and in so acting and in the doing of the work thereunder and in confirming the assessments in connection with such work, such assessments are not void by reason of fraud or other cause, and such assessments as have not been paid are valid and subsisting liens against the several parcels of land.” 44 C. J., sec. 3297(7), is as follows: “In accordance with general principles it has been held that an assessment may be vacated or set aside, or its enforcement enjoined, by reason of fraud on the part of the municipal authorities making the assessments.” Gallimore, supra. We can see no evidence of fraud in the matter. The mandamus proceeding required the railroads to build the underpass, the city of .Durham to pay the street paving. As heretofore stated, the city of Durham had the legal right to make this agreement. This judgment was affirmed on appeal to this Court and the U. S. Supreme Court. The railroad was an abutting owner and signed the petition at the request of the authorities of the city of Durham, knowing the city was liable under the judgment to pay for the street paving. Plaintiffs cannot complain, they are paying for exactly what they get — the street paved which abuts on their property. The Southern Railway gets what the city agreed to do after the underpass was built — the street paved which abuts on its property. The only complaint that plaintiffs might have was the fact that the city of Durham must increase its general tax a little by the city paying for paving the street abutting on the Southern Railway Company’s property. It had a right, in its discretion, to make this agreement. In fact the enormous cost in building the underpass justified this minimum sum compared to the cost to the railroads. We can see no legal or equitable grounds for plaintiffs’ not paying for their street assessments. The judgment below is Affirmed.