City of Winston-Salem v. Smith

Winborne, J. Upon tbe agreed facts presented in tbe record on tbis appeal these two questions arise in determining whether tbe assessment sued upon is valid: (1) Is tbe property of defendant an abutting property on Cleveland Avenue within tbe meaning of tbe statute, C. S., 2703-2728; Public Laws 1915, cb. 56? (2) By failing to appear in response to notices required by tbe statutes with respect to proposed street and sidewalk improvements, and by failing to appeal from assessments therefor, is defendant now estopped to challenge tbe assessment? On tbe factual situation shown, each question is answered in tbe negative. (1) An assessment for street improvements “is a creature of tbe statute and its validity must flow from tbe statute which authorizes it.” R. R. v. Ahoskie, 192 N. C., 258, 134 S. E., 653. By tbe statute imposing tbe assessment tbe Legislature bas tbe power to determine what property is benefited by tbe improvement and “when it does its determination is conclusive upon the owners and tbe courts.” Gunter v. Sanford, 186 N. C., 452, 120 S. E., 41; Charlotte v. Brown, 165 N. C., 435, 81 S. E., 611. In tbe act in question tbe Legislature provides that tbe assessment for street or sidewalk improvements “shall be specifically assessed upon tbe lots and parcels of land abutting directly on tbe improvements, according to their respective frontage thereon . . .,” C. S., 2710 (1); and with respect to sidewalks tbe assessment shall be “against tbe lots and parcels of land abutting on that side of tbe street upon which tbe improvement is made and directly on tbe improvement, according to their respective frontage thereon.” C. S., 2710 (3). *5 In the case of Lenoir v. R. R., 194 N. C., 710, 140 S. E., 618, speaking to this phase of the statute, and referring to Anderson v. Albemarle, 182 N. C., 434, 109 S. E., 262, Brogden, J., states that this Court there held that: “The words ‘abutting on improvement’ mean ‘abutting on the street that is improved,’ and, further, ‘by the term abutting property is meant that between which and the improvement there is no intervening land.’ ” In the case in hand, the west line of defendant’s property, Lot No. 10, is the east line of Lot No. 9. The answer, therefore, to the first question depends upon the extent to which the city has dedicated Lot No. 9 for street purposes. The agreed statement of facts shows that “in the construction of the street and in laying the sidewalk alongside thereof, only a portion of Lot No. 9, acquired by the city for the purpose, was utilized,” and that a strip of land between defendant’s property and the sidewalk on the east side of Cleveland Avenue was not used in any way by the city for street purposes, and the fee simple title thereto is still vested in the city. In the light of these facts and in the absence of a finding that the street lines as fixed by the city include the strip, it is apparent that there is intervening land between defendant’s property and the improvement. Hence, defendant’s property does not abut on Cleveland Avenue. Nor do we think that the acquisition of the whole lot for street purposes and the construction of a street and a sidewalk on a part thereof amounts to a dedication of the whole lot by the city for street purposes. In this connection it is pertinent to note that the city has the authority to buy land for streets. C. S., 2791; Public Laws 1917, ch. 136, sub-chapter 4, sec. 1, Public Laws 1919, ch. 262, as well as authority to sell any surplus of such land so acquired. C. S., 2688. Southport v. Stanly, 125 N. C., 464, 34 S. E., 64; Church v. Dula, 148 N. C., 262, 61 S. E., 639. Therefore, the fact that the city purchased a lot in fee simple and constructed a street thereon, without more, does not show that the entire lot is dedicated as a street. Plaintiff contends that defendant’s property is subject to the assessment for that defendant has the right in ingress and egress over' the intervening land to the improvement, but in the light of the agreed fact that the fee simple title thereto is in the city and there being no evidence of a dedication to public purposes, we do not think the position tenable. (2) Where the assessing board acts within the jurisdiction conferred by the act of the Legislature, and not in violation of it, ordinarily the rule requires the lot owner to assert any objection he had to the method of procedure in assessing his property. But where the board acts in violation of it, the assessment is void and jurisdictional, and can be *6 taken advantage of at any time when the assessment is sought to be enforced. Charlotte v. Brown, supra. In that ease this pertinent headnote from Bennett v. City of Emmetsburg (Ia.), 115 N. W., 582, appears : “Lot owners would not waive jurisdictional defects in proceedings for assessing special assessments for failure to appear and object to the assessment, or failure to appeal from the order of the council adopting the assessment resolution.” The judgment below is Affirmed.