Anderson v. Town of Albemarle, 182 N.C. 434 (1921)

Nov. 16, 1921 · Supreme Court of North Carolina

182 N.C. 434

J. N. ANDERSON v. TOWN OF ALBEMARLE.

(Filed 16 November, 1921.)

1. Instructions— Verdict Directing— Arguments — Jury—Courts—Appeal and Error.

A direction of tbe verdict upon tbe evidence renders immaterial an exception that tbe appellant bad been deprived of tbe right to tbe last speech to tbe jury.

2. Cities and Towns — Municipal Corporations — Street Improvements— Assessments — Prima Facie Case — Instructions.

Tbe assessment roll is prima facie evidence of tbe correctness of an assessment made in accordance with tbe provisions of statute by tbe governing board of a municipality as to tbe amount tbe owners of land upon an improved street shall pay for tbe special benefits they have received, and when there is no evidence to tbe contrary, it is not error for tbe court to direct a verdict upon this evidence.

3. Cities and Towns — Municipal Corporations — Street Improvements— Benefits — Government.

Tbe question as to whether tbe owner of land abutting upon a street to be improved will be benefited thereby may be determined by tbe governing board of tbe municipality, under tbe provisions of our statute adopting tbe front foot rule as tbe method of assessment. Tbe various methods of such assessments commented upon by Clark,, C. J.

4. Same — Pavements—Physical Contact of Improvements — Assessments.

Tbe paving of tbe full width of a city street may be postponed until such time as the governing body of a municipality may adjudge that tbe traffic conditions thereon require it; and an objection by the owner of land abutting on tbe street to an assessment by tbe front foot rule for special benefit, upon tbe ground that bis property does not come in actual contact with tbe part of tbe street for which tbe city has paid as a general benefit, is untenable under our statutes, cb. 56, secs. 5, 13, Raws 1915.

Appeal by plaintiff from Bryson, J., at September (Special) Term, 1921, of StaNly.

Tbe commissioners of Albemarle, under authority of cb. 56, Laws 1915, assessed against tbe iilaintiff for improvements on tbe street in front of bis lot on North Stneet tbe sum of $207.05. He filed exceptions and appealed. In tbe Superior Court tbe court instructed tbe jury if they believed tbe evidence to answer tbe issue $207.05, with interest, and tbe plaintiff appealed to this Court.

Baper & Baper and B. L. Brown for plaintiff.

B. L. Smith & Son and Manly, Ilendren & Womble for defendant.

ClaeK, C. J.

Tbe plaintiff excepted and assigned as error that tbe court refused to require tbe defendant to open tbe case, and thereby required him to take tbe burden of proof. Since at tbe close of all tbe evidence tbe court directed tbe verdict, it could make little difference upon wbom tbe burden of proof was placed. Tbe assessment bad been made by tbe commissioners under cb. 56, Laws 1915, and it bad been reviewed and approved by them on exceptions filed by tbe plaintiff. Tbe assessment roll is prima facie evidence of a valid assessment, and of tbe regularity and correctness of all prior proceedings. McQuillin Mun. Corp., sec. 2117, wbicb be says is based upon tbe general maxim that public officers are presumed to bave acted rightly until it is otherwise made to appear. In tbe absence of any showing to tbe contrary, assessments are presumed valid, and be who attacks their validity has tbe burden of establishing by competent evidence tbe contrary. Justice v. Asheville, 161 N. C., 62.

Tbe second exception is to tbe refusal of tbe court to allow tbe plaintiff to testify that tbe work done on tbe street did not in any manner benefit bis property, or enhance its value. It is not open to tbe property owner to say that tbe improvement is not a benefit to tbe property. Doubtless, if tbe owner’s opinion on this point were to govern there would be few streets or sidewalks improved in their entire length. Tbe question of benefit is one of fact, and tbe governing board of a municipality, under legislative authority, is vested with tbe power to determine what lands will be benefited by tbe improvements, and their determination is conclusive upon tbe owner of tbe ground charged with tbe costs of tbe improvements except in rare eases. Felmet v. Canton, 177 N. C., 52; Justice v. Asheville, 161 N. C., 62; Tarboro v. Staton, 156 N. C., 504.

There are several methods of apportioning tbe costs of improvements, but there are two wbicb are generally recognized, i. e., apportionment according to benefits and apportionment according to frontage, but tbe liability of tbe land to assessment is determined by tbe municipality under tbe authority of tbe Legislature. Tbe assessment to each owner when tbe apportionment is according to benefit is subje<Tt to review by appeal.

This matter is fully discussed, 25 R. C. L., at p. 138, and tbe general principles applicable on tbe question of assessment of benefit is discussed, 25 R. O. L., p. 160. Tbe general principles of apportionment, when made, as in this case, according to frontage, are set forth 25 R. O. L., 144 et seq. Tbe plaintiff excepted to the action of tbe court in directing tbe jury to answer tbe issue in favor of tbe town upon these grounds:

1. Tbe petition does not sufficiently describe tbe local improvement to be undertaken. An examination of tbe record shows, in our judgment an entirely sufficient description of tbe improvements to be undertaken.

2. Tbe second objection is that tbe order of tbe board prescribed that tbe street should be “improved by covering tbe same with sheet asphalt,” whereas, only 30 feet in tbe middle was paved, leaving a space of 22% feet between tbe plaintiffs property and tlie paved portion of tbe street, and tbe principal point of tbis appeal lies in tbe contention tbat tbe plaintiff’s lot does not “abut on tbe improvement.”

If there were force in tbis objection, tben tbe town could not impose any part of tbe improvement of a street upon tbe adjacent landowners unless tbe street was paved to its entire width. In tbe good judgment of tbe board of tbe town of Albemarle tbis was not required, at tbe present time, by the needs of traffic in tbat town, and to have done tbis would have more than doubled tbe assessment upon tbe plaintiff’s property, of which be already complains.

Section 13 of tbe statute authorizes tbe assessment to be made against “tbe property abutting upon said street or streets,” and in another place says “abutting on tbe improvement.” We take it tbat tbe intention of tbe statute which authorizes tbe apportionment of tbe charge mentioned in tbe statute and assessed by tbe board, according to frontage, is tbat tbe lots abutting on tbe street which is improved shall be assessed, and not tbat tbe town shall be required to improve tbe entire width of tbe street.

Section 5 of the act requires tbat tbe petition shall be signed by a majority of tbe owners of tbe lots “abutting upon the street or streets or part of a street proposed to be improved,” and section 6 says tbat tbe proportion of tbe costs is to be assessed “upon abutting property.” Section 8 provides that one-balf of tbe total cost “of a street or sidewalk improved . . . shall be specially assessed upon the lots and parcels of land abutting directly on the improvements according to their respective frontage thereon”; and section 13, as above stated, refers to tbe assessment being against “tbe property abutting upon said street or streets.”

We think it clear tbat all these mean tbe same thing, and tbat tbe words “abutting on tbe improvement” means abutting on tbe street tbat is improved, and that tbis does not require tbat tbe pavement shall extend the entire width of the street when this would be an unnecessary cost, and would greatly enhance tbe burden of which tbe plaintiff in tbis case complains. By tbe term “abutting property” is meant tbat between which and tbe improvement there is no intervening land. Millan v. Chariton, 145 Iowa, 648.

Land need not necessarily abut directly on tbe part of tbe street tbat has been improved to subject it to liability for its share of tbe cost of improvement. Indeed, premises separated from a street by a small stream, but having access to the street by means of bridges, are premises abutting on tbe street though tbe owner of tbe premises is not tbe owner of tbe bed of tbe stream, and be is liable to assessment provided be has the right of ingress and egress over the intervening land to the improvement. 25 R. C. L., p. 112, and cases cited under notes 8, 9, 10, and 11.

If the plaintiff’s contention that the property sought to be assessed must “abut” upon the improvements by coming in actual contact with the improvement .could be maintained, then the common practice of paving the middle of a sidewalk, leaving a strip of unimproved sidewalk between the property line and the paved portion, and leaving another strip between the curb and the paved portion, must be abandoned since the property which abuts the sidewalk could not be assessed because it does not abut the improved part of the sidewalk.

The common-sense, practical meaning of the legislation is that lots abutting the street that is improved, either with respect to the roadway or the sidewalk, are benefited thereby and should be assessed for a proper proportion of the cost, over and above that portion of the cost paid by the city by reason of the general benefit. It cannot be said that the street or sidewalk is not improved because it is not paved the entire width.

In this case the street in front of the plaintiff’s property is 75 feet in width, and the traffic over it at this time did not, in the judgment of those to whom the law has committed the making of the improvement, require the paving of the entire width of the street. In the course of time, the town of Albemarle will assuredly increase in population and wealth, so that the traffic will require the street to be paved the entire width, and then the plaintiff, or his successor in title, will be charged with the additional costs which he is now complaining that he is spared by the action of the authorities.

No error.