City of Hendersonville v. Freeze

DEFENDANT’S APPEAL. Adaks, J. The defendant admits his liability upon the assessments levied for the stone base and asphalt ($1,075), and for the three-foot strip of pavement ($51.57), but contests his liability upon the assessments for the engineering, the grading, and the storm-sewer. His exception to the judgment is based upon the contention that under the provisions of sections 12 and 13 it was incumbent upon the plaintiff to survey, excavate, and fill the street and to construct the storm-sewer at its own expense, and that the assessment against his property should not exceed his proportionate part of the cost incurred for the asphalt and stone base. As we understand the record, this position cannot be sustained. The sections referred to are distinguishable; one of them applies to sidewalks and the other to streets; and the provisions of the two differ with resjoect to the assessments to be charged against the property of the abutting owner. Under section 12 the city, at its own expense, must grade and curb the sidewalks; and the curbing, but not the grading, of the sidewalk is involved in this appeal. The provision in section 13- — ■ “to charge the cost thereof according to the proportion laid along their respective properties as in the case of sidewalks” — obviously refers to the proportion of frontage, or the ratio1 which the frontage of one [479] abutting owner bears to the frontage of other abutting owners, and does not imply that the grading of the streets shall be done at the expense of the city “as in the case of sidewalks.” It is equally clear, we think, that the word “pave” as used in section 13 signifies more than laying the stone'base and covering it with asphalt. As a comprehensive term, it implies all things necessary to and immediately connected with the construction of a firm, convenient, and suitable surface for the use of horses, vehicles, and pedestrians, including the necessary preparation, such as engineering and grading, as well as putting down the stone, or brick, or other surface material, and thereby completing the work in the way intended for the public use. Buell v. Buell, 20 Iowa, 290; Warren v. Henly, 31 Iowa, 36; Morse v. Westport, 19 Mo., 831; In re Phillips, 60 N. Y., 16; Heath v. Taxicab Co., 131 Pac., 843; Coleman-Fulton Co. v. Arkansas Co., 180 S. W., 316. In our opinion each of the items charged against the defendant is a proper assessment. Upon the defendant’s appeal we find no error, and the judgment is Affirmed. Plaintiffs Appeal. The plaintiff excepts to the judgment because his Honor did not charge the defendant with a proportionate part of the cost of the combined concrete curb and gutters. As we have indicated, section 12 provides that the city shall grade and curb the sidewalks at its own expense. It appears that the concrete curbing of the sidewalk, the cost of which is to be paid by the city, was combined with the gutters or consolidated with the pavement and the total cost was made an indivisible item of expense, so that it is impossible to ascertain the separate cost of the curbing. Under these circumstances, in our opinion, the entire expense of the combined curbing and gutters should be borne by the city. The judgment is therefore Affirmed.