City of Durham v. Proctor

131 S.E. 276, 191 N.C. 119, 1926 N.C. LEXIS 19

• Court: Supreme Court of North Carolina
• Decided: January 27, 1926
• Status: Published

Opinion

Plaintiee's Appeal

Stacy, C. J.,

after stating the case: The damages awarded for the lands condemned are not in dispute, but the city of Durham appeals from the judgment vacating th,e apportionment of the costs between the city at large and the properties benefited within the district, on the ground that, though alleged, no arbitrary action on the part of the commissioners or others has been shown or found, and that, in the absence of such finding, the apportionment made by the commissioners and approved, as by the statute provided, is final. We think the city’s position is well taken. The municipal authorities were fully empowered to establish the assessment district, and to assess the burdens in proportion to the benefits. This they did, taxing the city at large with 75% of the cost and the benefited properties in the district with the remaining 25%. Ample provision is made for a hearing, and such was accorded. There is nothing to justify the conclusion that the authorities acted arbitrarily or with mala fides. The fact that the commissioners adopted a so-called “frontage rule” in fixing the value of the benefits or advantages to the different lots within the assessment district, in our opinion, is not sufficient to upset the apportionment made, without an additional finding that the application of such a rule resulted in hardship or injustice to the property owners in the particular case. It is only such practical equality as is reasonably attainable under the circumstances, and not absolute mathematical accuracy, that is to be expected in a matter of this kind. Certainly the finding, as made, that the commissioners “did not exercise an independent judgment in an appraisal of the value of the benefits accruing from the improvements on the separate lots so assessed,” is not a finding of arbitrariness, abuse of discretion, or mala fides, on the part of the commissioners.

The principles of law applicable to the instant proceeding, have been so thoroughly discussed, with full citation of authorities, in the comparatively recent cases of Gunter v. Sanford, 186 N. C., 456, Felmet v. Canton, 177 N. C., 54, Butters v. Oakland, 263 U. S., 164, and others that we deem it unnecessary to repeat here, more than in substance, what has been said in these recent decisions. On the record, as now presented, we think the plaintiff was entitled to have the assessments against the different lots approved. In entering a contrary judgment, there was error.

On plaintiff’s appeal, error.

DEFENDANTS'" APPEAL

Stacy, C. J. The only exception presented by the defendants’ appeal is addressed to the refusal of the court to dismiss the action on the pleadings and the record. It follows from what we have said in regard to plaintiff’s appeal that no error was committed in overruling defendants’ motion to dismiss the proceeding.

On defendants’ appeal, affirmed.

Beogden, J., having been of counsel, took no part in the consideration or decision of this case.