Highland v. City of Galveston

Gould, Associate Justice. But two questions need be considered: First. Had the plaintiff occupying the premises as tenant or lessee of the owner any other or greater right to recover damages than the lot owner would have had, had he himself been the occupant? In our opinion this question must be answered in the negative. The lessee holds under the owner, and takes only such right as the owner can convey. The owner holds his lot subject to the burden of improving the sidewalk in front thereof at the requirement of the city council, or at all events, subject to be charged with the cost of such improvement, and his lessee would also hold subject to the same charge. Unless the occupant of the premises, being the owner thereof, could have recovered damages of the city because of its .failure to complete the construction of the sidewalk which it had commenced, he could not recover, being only a tenant. It is to be observed that the question is not who should defray the cost of the improvement, the owner of the [534] fee or the lessee for years, or in what proportion such cost should be a charge on the different estates, such as for years, for life or in fee, which different parties may have therein. See Norwich v. Hubbard, 22 Conn., 587; Whyte v. Mayor and Aldermen of Nashville, 2 Swan, 364. The burden of the improvement when ordered, or its cost when constructed, attached to the lot in the possession of any party having an interest therein. Whatever that interest, it was subordinate to that burden or charge, and was hable to be defeated by the sale of the lot regularly made to enforce the collection of the cost. The second question is: Under the charter and ordinances of the city, did the duty of making a sidewalk improvement, regularly ordered to be made by the city council, devolve upon the owner, unless he was served with a notice to construct it? By the ordinances of the city, where the lot was within the fire limits, written notice was to be served on all property owners to construct the sidewalks within a period of sixty days after notice, and on their failure, the mayor and chairman of the committee on streets were authorized to have them constructed, the cost being made a charge on the property. In our opinion, the duty to make the improvement devolved on the owner of the lot where it was ordered to be made by an ordinance of the city. The written notice may have been necessary to authorize the mayor and chairman to have the improvement made so as to make its cost collectible by the sale of the lot, but the right, and in one sense the duty, of the lot owner to make the improvement himself, and the liability of the lot to be charged with the cost of his failure to do so, attached on the passage of the ordinance ordering the improvement made. We think it follows from these views that the court committed no error in its charge, or in the refusal of charges asked, of which appellant can complain. As the verdict and judgment were in favor of the city, [535] we have not felt called on to inquire whether there was any error in the charge against the city. The judgment is affirmed. Affirmed. [Opinion delivered March 18, 1881.]