City of Canton v. Davis

111 So. 137, 145 Miss. 610, 1927 Miss. LEXIS 143

• Court: Mississippi Supreme Court
• Decided: January 17, 1927
• Docket: No. 25960.
• Status: Published

Opinion

Eti-iridge, J.,

delivered the opinion of the court.

The city of Cauton filed a bill against the appellee, J. R. Davis, to enforce the payment of a charge made against certain property owned by Davis on South Liberty street in the city of Canton, for paving said street under chapter 260' of the Laws of 1912.' This bill pjo- ceeded upon the idea that the city acted under the authority of that chapter, and a demurrer was sustained to the bill so filed. Thereafter an amended bill was filed, in which it was alleged that J. 11. Davis and others petitioned the city to construct said pavement upon certain conditions set forth in the petition, and that Davis, then being; the owner of the property involved in this suit, and others, on the 15th day of May, 1923, filed their separate petition to the mayor and board of aldermen to have constructed on said street a practically permanent pavement on the order of the pavement which would be constructed around the court square, and for which pavement contract had been let, and represented in said petition their willingness to pay for same, as will fully, appear by reference to a copy of said petition filed with the amended bill; that said paving was done at the special instance and request of the said defendant in this suit, and that complainant now charges that the said defendant. is estopped from claiming any irregularity as to notice or otherwise in said proceeding; and for these and other reasons set up in complainant’s original and amended bill the defendant must pay for said paving; that, among other things, defendant J. R. Davis and others specially provided, in signing said petition, as part of the consideration for signing the said petition, that the city of Canton would cover the ditch in front of defendant’s property, which ditch wás unsightly, full of grass, weeds, and water, and had been an eyesore to the property owners on Soutli Liberty street, from Semmes street to Hill street, with concrete, so that same could be covered with dirt and grass grown on the top thereof; that, at its own expense, it had such ditch covered at a great expense, namely four thousand seven hundred and twelve dollars, and thereafter laid said pavement as requested.

It is further alleged that the covering of said ditch greatly enhanced the value of said property of the said defendant, transforming the said street from an un sightly street into one of the most beautiful boulevards in the city, or in the state of Mississippi, and that it would be highly inequitable and unjust to let the defendant escape the obligation imposed upon him, as said paving was undertaken at the special instance and request of said defendant, together with other abutting', property owners on said South Liberty street. It is further alleged and pleaded that decree be entered against defendant to estop him from denying complainant’s right to subject said property to the payment of the' assessment for paving against it.

There was also an agreed statement of facts supplementing the pleading, in which the orders and proceedings before the board as to notice and other things published by the municipality were to be made a part thereof. The petition referred to, filed -by Davis and others, reads as follows:

“The undersigned property owners on South Liberty street hereby petition you to have constructed on said street a practically permanent pavement, on the order of the pavement which will be constructed around the courthouse square, and for which pavement contract has been let. If you will construct a similar pavement on said street in front of our respective lots, and the costs of same will not exceed, each property owner, two dollars and seventy-five cents per running foot, and if you will give us from one .to ten years to pay for said pavement that may be constructed in front of and abutting our respective lots, and charge us only six per cent, interest per annum of the moneys that may be assessed against us for said pavement, then, under said conditions, we desire said pavement constructed in front of and abutting our respective properties on said street, and do hereby request that you have the same constructed as soon as possible: Provided further, and the main condition, that the city cover the drain or ditch in front of the properties owned by J. B. Davis, Mrs. Julia Mayfield, Mrs. D. O. Leitcli, and Mrs. Gns Duckett, at tlie city’s expense.”

This petition, dated February 14, 1923, and filed May 5, 1923, was spread upon the minutes of the board. The following order was thereupon entered by the board on its minutes:

“A petition by Mr. J. II. Davis and one by Mr. E. A. Howell were presented to the board by the citizens on South Liberty street, asking that the street pavement be extended on south from the Stewart and Coleman properties to Semmes street; one of the petitioners asking that the big ditch in front of Davis place south to Semmes street be concreted and the same covered with concrete, the city paying for this part of said work. After some discussion, and it being estimated said ditch being concreted would cost nearly fifteen thousand dollars -or twenty-thousand dollars, the city engineer was asked to figure the estimate cost of this work, and the city attorney was instructed to draw up a resolution extending the contemplated street paving from the Coleman property on the north to Semmes street south, and, said properties being north of big ditch, Mr. Davis was told that, if his petitioners .wanted the paving in case the cost of covering the ditch was prohibitive, to bring another petition before the board so stating — they want said street paving leaving, the ditch as it is. ’ ’

On June 5,1923, the board entered the following order:

“Motion. Comfort, made and carried that it is the consensus of opinion of board that ditch on South Liberty street be covered as soon as funds are available.”

On the 5th day of September, a motion was made that no new work be done until the ditch on South Liberty street was covered, which motion was lost. On the 13th day of September the following order was entered upon the minutes of the board:

“Mayor called the meeting to order; all the aldermen, attorney, and clerk present. A committee of citizens from South Liberty street were present and tried to get the board to rescind the street paving* order and to cover the big ditch on east side of Liberty street, from Semmes street to Hill street, by putting in concrete boxing. After some talk on the. subject, the city attorney explained to the citizens that the city would have to pass new paving resolutions and have them published according to law, and that at the present time the city has not the money to fix the ditch, as this expense is to be borne by the city alone. It was decided to go ahead with the paving.

“Motion of Ross to pave Liberty street to Semmes street and fix ditch, instead of paving thé other part of street, lost for want of a second.”

On September 18, 1923, a petition of protest was filed by Davis and others asking that the city not pave that part of said street, unless the big ditch on the east side in front of the property of Davis, Mayfield, Leitch, Luckett, and others be concreted as. requested, and stating that they would not pay for the street paving unless the ditch was fixed at the city’s expense. The matter was discussed by the board, and the clerk was instructed to enter the petition upon its minutes, the disposition of which would be decided at the time of letting the contract to pave , said street. . The petition was so spread upon the minutes.

On the same day an order was entered as follows:

“In regard to passage of the foregoing resolution to pave Liberty street, the board discussed the petition of citizens living below Semmes street, asking that street not be paved, and after considerable argument was the general opinion of board, backed by that of the city* attorney, that said petitioners had waited too long, and part of street could not be legally paved and part left off, after same had been advertised as a. whole. Attorney II. T. Huber, representing the petitioners, was present and heard the decision of board to adhere to the original program and let this work as advertised.”

. Om the 14th day of October, 1925, an order was entered levying a special assessment against D'avis and the several property owners, the amount assessed against the property of Davis being eight hundred sixty-two dollars and fifty-three cents. The contract was let for less than the amount stipulated in the petition, hut the order making the assessment against the property owners did not conform to the petition of Davis and others, in that an option and right to have from one to ten years to pay for the said pavement, at a charge not exceeding six per cent, interest per annum, was not allowed. The order entered, not being so drawn as to divide the assessment into ten payments, or to fix the interest charged on deferred payments at six per cent., did not follow the petition filed by Davis and others, as prayed for. It further appears that the city of Canton, in 1916, paved Peace street of said city from the proceeds of a bond issue voted for that purpose, without levying any assessment against the property owners for a part of the cost as a special improvement to their property.

Chapter 260, Laws of 1912, has been construed in City of Jackson v. Doxey, 128 Miss. 618, 91 So. 348, Firm Lumber Co. v. City of Hattiesburg, 132 Miss. 1, 95 So. 250, and Firm Lumber Co. v. Hattiesburg, 133 Miss. 808, 98 So. 145. In these cases it was held that, where the city had begun paving under one plan of assessment and paving, it could not thereafter change to a different plan, and that the property owners in those cases who had not petitioned for the improvements could not be charged with them on a different basis from that of the original paving done in the first instance by the city. In the Hat-tiesburg cases, mentioned above, the city started its paving and paid all the costs thereof, charging none of it against the abutting property owners. Certain streets had been paved in this way previously, but a. number of years had intervened, and no further paving had been done until the paving involved in the said suits was begun. The city decided thereafter to pave other streets, and charged the property owners with a portion of the cost thereof as special improvements. The court held that this could not be done under the act of 1912. In the Doxey case, supra, the city had begun paving by charging the property owners a fixed proportion of the cost, and by paying a fixed proportion of the cost itself. Thereafter it undertook to pave another street, and taxed the property owners with the entire cost, and the court held that same could not be done.

The appellant contends that in the present case the city had not begun a system of paving streets, but had only begun the paving of a portion of one of the leading thoroughfares of the city in 1916, and had done no other paving until 1923, and that the paving of Peace street from the court square to the distance shown in the record was not a system of paving, but was an isolated case of paving, and that the rule of the case above referred to ought not to be applied in this case. We are unable to agree with the contention of the appellant in that regard. We think the pavement in 1916 was a beginning of the pavement, and that, under the rule announced in the case above referred to, the plan or system of paving then begun must continue until the legislature amends the law.

It is next argued that the appellant is estopped by reason of the petition which was 'filed, requesting the board to lay the pavement, with the understanding that the property owners would pay the cost thereof so long as it did not exceed two dollars and seventy-five cents per lineal foot to each petitioner, and that, as the city had acted upon the petition, and incurred the expense of covering the ditch with concrete and laying the pavement at the instance of the petitioners, who derived the benefit from such improvements, they could not thereafter set up irregularities, or the want of power of the city to lay the paving on adverse proceedings. Conceding that the principle contended for is sound, we cannot apply it to the case before us, because the board did not follow the conditions set out in the petition in making the assessment. The city, of course, had jurisdiction of its streets and the power to improve them at its own expense. It can authorize the paving, or refuse to do so. If the city, after beginning the paving, departed from the scheme of the statute, it would certainly have to travel upon the theory of contract, and to travel upon this theory would require a meeting of the minds of the parties and conformity by the city with the conditions named in the petition. This it did not do in the case before ns, and consequently the principle contended for cannot be.applied to this case.

It follows that the judgment of the court below must be affirmed.

Affirmed.