Vester v. Town of Nashville, 190 N.C. 265 (1925)

Oct. 14, 1925 · Supreme Court of North Carolina

190 N.C. 265

B. H. B. VESTER et al. v. THE TOWN OF NASHVILLE.

(Filed 14 October, 1925.)

1. Appeal and Error — Injunction—Presumptions—Facts Found.

While the findings of fact by the Superior Court judge in injunction proceedings are not conclusive on appeal, there is a presumption in favor of the proceedings in the lower court, which places the burden upon the appellant to assign and show error.

2. Municipal Corporations — Cities and Towns — Taxation — Street Improvements — Assessments—Statutes.

The assessments made upon the lands of an owner adjoining a street improved by the authorities of a city or town, will not be declared invalid on the ground of the insufficiency of description in the assessment roll at the suit of such property owners, when in substantial compliance with the statute under which the proceedings were had. C. S., 2711, 2712.

3. Same — Assessment Rolls.

As between the abutting landowners upon the street improved by a city or town and the proper municipal authorities acting thereon, the failure of the latter to keep the special assessment book, as provided by C. S., 2722, .is not fatal to the validity of the assessments, if the original assessment roll or book is accessible, sufficient to give all necessary information of the property assessed, and available upon the statutory notice given.

4. Same — Notice—Publication—Healings.

Where a city or town has regularly and sufficiently proceeded to assess the lands of property owners abutting a street to be improved under the provisions of our statute, and have published the notice thereof as the law requires, and such owners have been afforded ample opportunity to be heard by the commissioners of the municipality, their failure to appear and resist the assessment thus laid on their property under the proceedings prescribed by the statute will bar their right to impeach the ordinance. O. S., 2711, 2712.

Appeal by plaintiffs from Barnhill, J., dissolving a restraining order and dismissing tbe action.

Tbe plaintiffs allege tbat tbe defendant paved Main and Railroad streets and witbont authority of law assessed against tbe plaintiffs tbeir proportionate part of tbe cost of tbe paving and curbing. Tbey more definitely' allege tbat tbe defendant failed to serve tbe plaintiffs witb a copy of any notice relating to tbe improvement, tbat tbe plaintiffs bave bad no opportunity to comply witb tbe order of tbe board of aldermen, and tbat tbe assessments against tbe plaintiffs were exorbitant, wrongful, and unlawful. Tbey say further tbat tbe defendant was required to keep an assessment book, but failed to do so, tbat their lots bave been advertised for sale to secure tbe payment of said assessments; and tbat tbe notice of sale is not sufficient in law. Tbey pray judgment tbat tbe sale be enjoined until tbe bearing and tbat tbe assessments be vacated and set aside.

Tbe defendant answered denying tbe material allegations of tbe complaint and alleging tbat tbe requirements of tbe law bad been complied witb. Judge Barnhill found tbe facts to be as follows:

(1) Pursuant to C. S., 2703 et seq., petitions were filed by citizens of Nashville having property facing on Railroad Street, Barnes Street and Washington Street in said town requesting tbe improvement of said streets by paving tbe same; tbe said petitions were duly filed, and were signed by tbe required number of property owners and tbe secretary to tbe board of aldermen after investigation filed bis certificate as to tbe sufficiency thereof.

(2) Tbat tbe board of aldermen thereafter duly and properly adopted a resolution approving said petitions and authorizing said improvements, which resolution contained all matters and things required by statute, and was duly and properly published in The Graphic, a newspaper published in tbe town of Nashville.

(3) Tbe board of aldermen of said town duly and properly made assessments against tbe property of persons having property abutting upon said streets, in accordance witb tbe statute, and having ascertained tbe assessments prepared and filed an assessment roll which in all respects complies witb tbe provisions of tbe statute in respect thereto.

(4) Tbat upon said assessment roll having been prepared and filed, due notice was published in The Graphic, a newspaper published in tbe town of Nashville, giving notice of tbe bearing upon tbe confirmation of said assessment as provided by statute, and said bearing was duly held and said assessments confirmed. None of tbe plaintiffs appeared at said bearing or entered any objection or exception to said assessment, nor appealed to tbe Superior Court therefrom.

(5) Upon said assessment being confirmed, tbe board of aldermen adopted a local improvement-bond ordinance, which ordinance was in all respects duly and properly adopted, and provided tbat it should become effective immediately upon its adoption. This ordinance was duly and properly published in The Graphic, a newspaper published in the- town of Nashville, in its issue of 7 October, 1920. Tbe proceeding of tbe board of aldermen in respect to tbe issuance of said bonds was otherwise in all respects regular and proper.

(6) Tbe board of aldermen likewise undertook to provide and prepare an assessment book, as provided by O. S., 2722, but said assessment book does not, in certain respects, comply with tbe provisions of said section, in tbat tbe number of tbe lot or part of lots and tbe' plan thereof is not therein given, nor is tbe amount of such installments and tbe date on which the installments of said assessment shall become due given, nor is such book indexed as required by said statute. A copy of tbe assessment roll was delivered to tbe tax collector as provided by tbe statute and was kept by him with tbe assessment book.

(7) Tbat all of the acts of tbe board of aldermen in respect to tbe making of said improvements, tbe levying of said assessments, and tbe issuing of said bonds, were in all respects regular and proper, except as to tbe preparation and keeping of said assessment book.

Upon these facts it was adjudged tbat tbe failure properly to prepare and keep tbe assessment book does not inter paries affect tbe validity of tbe assessments; tbat tbe assessments are legal and constitute valid and subsisting liens upon tbe lots abutting tbe improved streets; and tbat tbe restraining order should be dissolved and tbe action dismissed. Tbe plaintiffs excepted and appealed.

W. M. Person for plaintiffs.

Austin & Davmport, Finch & Vaughan and Cooley & Bone for defendant.

Adahs, J.

Tbe plaintiffs except to tbe judgment on these grounds: (1) Tbe description in tbe assessment roll is not sufficient; (2) tbe defendant failed to keep an assessment book; (3) tbe notice of sale is not sufficient; (4) tbe findings of fact are not supported by tbe evidence.

It is provided by statute tbat upon tbe completion of a local improvement tbe governing body of tbe city or town shall compute tbe total cost and make an assessment thereof, and for such purpose shall make out an assessment roll in which must be entered tbe names of tbe persons assessed, tbe amount assessed against them, and a brief description of tbe lots against which tbe assessment is made. Also tbat tbe assessment roll shall be deposited in tbe office of tbe clerk of tbe municipality for inspection by interested parties and tbat tbe governing body shall cause to be published a notice of tbe completion of tbe assessment roll, setting forth in general terms a description of tbe improvement and a time for tbe bearing of allegations and objections in respect to tbe special assessment. 0. S., 2711, 2712.

While in cases of injunction we are not bound by the facts as determined in the trial court, there is a presumption that the proceedings below are correct and the burden is upon the appellant to assign and show error. Sanders v. Ins. Co., 183 N. C., 66; Woolen Mills v. Land Co., ibid., 511. The assessment roll consists of a plat or blue print of the streets on which the improvements were made, the names of the abutting property owners, the number of feet, and the amount assessed against each lot. We have examined the exhibits or addenda and are of opinion that the assessment roll was made out in substantial compliance with the provisions of the statute.

We also concur in his Honor’s ruling, that, as between the plaintiffs and the defendant the defendant’s failure to keep the special assessment book as provided by C. S., 2722 is not fatal to the validity of the assessments. The assessment roll and the assessment book are sufficiently definite to give all necessary information to the owners of the property against which the assessments were made.

The third exception also must be overruled. Evidently the property owners understood the notice as referring to their several lots. The question of constructive notice and the rights of innocent purchasers are not involved. And as to the fourth exception we think the evidence sustains all the findings of fact incorporated in the judgment.

The record presents a case in which the plaintiffs were duly notified and given ample opportunity to be heard; and if they saw fit not to avail themselves of the opportunity thus afforded they cannot now be heard to impeach the validity of the ordinance or the assessment. Marion v. Pilot Mountain, 170 N. C., 118, 123; Schank v. Asheville, 154 N. C., 40; Hilliard v. Asheville, 118 N. C., 845. The statute of limitations under the facts disclosed is not a bar.

The judgment is

Affirmed.