Catts v. Town of Smyrna

10 Del. Ch. 490 | Del. | 1915

Boyce, J.

(delivering the opinion of the court). The object of the bill in equity, filed in this cause, was to enjoin the sale of personal property, previously distrained upon, then advertised for sale by the town council of Smyrna, for the purpose of collecting an assessment for paving, curbing and guttering in front of the lands of the complainants below, and likewise to attack the validity of the assessment made for the cost of the improvements, on the ground of error in locating the curb and gutter, and to effect the cancellation of the assessment as a lien against said lands.

Answer was made to the bill, and the complainants thereupon moved for a decree, notwithstanding the answer. The Chancellor declined to decide the cause upon bill and answer, but ordered that it proceed to a hearing upon replications and proofs taken in the usual course.

By agreement of counsel, the cause was heard by the Chancellor on oral testimony. In his opinion subsequently filed, the Chancellor reached the conclusion that the complainants were “not entitled to relief by way of injunction to prevent the sale, or to have the lien declared invalid, or to have relief,” and dismissed the bill, with costs on the complainants.

A decree was entered accordingly. Whereupon the complainants prayed an appeal which was granted.- Eleven errors in varying forms were assigned. They raise three questions which for convenience are here stated in the order in which they will be briefly considered:

1. Whether Chapter 537, Volume 20, or Chapter 186, Volume 25, Laws of Delaware, governs in the assessment made for the cost of the curb and gutter.

2. Whether the preliminary notice given to the complainants to pave, curb and gutter was sufficient.

- ■ 3. Whether the curb arid gutter were so incorrectly located by the town authorities as that their cost cannot be assessed and made a valid lien upon the lands of the complainants, the abutting owners, and collected therefrom.

First, the Chancellor rightly found that the town charter, contained in Chapter 537, Volume 20, and not Chapter 186, Volume 25, Laws of Delaware, applies to the assessment under consideration.

Second, the notice (the character of which is shown irt the opinion of the Chancellor) which was served on the complainants, directing them to cause the paving, curbing and guttering, as required by prior ordinance of the town council, to' be done, is, for the reasons given by the Chancellor, sufficient. Besides, in the absence of anything else affecting the validity of the assessment, the knowledge of the abutting owners, or of any one of them, that the improvements were being made and that the cost thereof was to be assessed against their land, the improvements being of special benefit thereto, the owners are estopped,-as was held by the Chancellor, from denying the sufficiency of the notice.

Third, the contention was made that the curb in question is set some sixteen inches, or more, east of the correct west line - of Main Street, in the Town of Smyrna, and so within the street as to make it less than forty feet from curb to curb. This, it was insisted, makes the location of the curb unlawful, inasmuch as the said street was originally a part of the State Road, known as the King’s Highway, required by law to be maintained at a width of forty feet, and which the town council in setting the curb had no right to narrow.

Assuming that the evidence adduced before the Chancellor shows that the curb does encroach upon the street to a slight extent, or to the extent claimed, have the complainants, by reason thereof, a right to the relief sought ? Does such encroachment have the effect to invalidate and make void the assessment and the lien upon the lands therefor? If the town council had not power and authority under its charter, which was not considered by the Chancellor, to narrow the vehicular portion of said street for proper sidewalks, curbs and gutters because the street was originally a county road, nevertheless the location of the curb and gutter did not affect the complainants by taking any portion of their land, or by imposing any additional cost upon them therefor.

Under the law, the complainants were, after the required notice, bound either to pave, curb and gutter in front of their property, or suffer the town authorities, to do so at their, the complainants’, expense. If the curb was so set as to encroach upon the street or highway, as claimed, in front of the complainants’ lands, which is not clearly established, yet there is nothing in the evidence to show that the complainants have, or will sustain, by reason of such encroachment, any injury or damage, or that the assessment had been imposed under such circumstances, and without authority of law, as clearly to entitle them to relief in equity. .It is, therefore, the unanimous opinion of the court, as found by the Chancellor, that it was not shown that the assessment for the cost of the curb and gutter was invalid, or unlawful, by reason of the alleged error in locating them; and that the complainants are not entitled to the intervention, of a court of equity in the premises, and that the decree of the Chancellor in dismissing the bill, with costs on the complainants, should be, and it is affirmed.