158 So. 748 | Ala. | 1935
This is a bill by a property holder against the city of Birmingham to remove a paving assessment lien as a cloud upon the title to real property.
The cause was tried upon an agreed statement of facts, and resulted in a decree to the effect that said plat lots 11 and 12 lying within one-half block of the intersection of Nineteenth street and Avenue U were liable for their due proportion of intersection paving costs under section 2187 of the Code (as amended by Gen. Acts 1927, p. 762, § 16), but that these lots were improperly included as a part of the larger area abutting Nineteenth street, and were not subject to an improvement lien "as a part of such larger area for such larger area's proportion of either general or intersection paving costs." That is to say, the decree adjudged an "intersectional charge" of $32.96 upon each of the plat lots, and declared void the city's assessment for general and intersection paving costs; said real estate being "not subject to nor liable for the assessment imposed on it under the said improvement ordinance under Pro No. D-64393," except to the extent of intersectional charge above stated.
In so far as concerns the res and its identity, the only requisites to the jurisdiction of a municipality to assess for street improvements a contiguous area or parcel are that such area shall be within one general ownership to which the assessment is made, and shall have a boundary coincident with the boundary of the street to be improved. City of Birmingham v. Emond (Ala. Sup.)
The theory of appellee is that equity will enjoin enforcement, and will vacate a void assessment casting a cloud upon the title; no adequate remedy at law appearing. Jasper Land Co. v. City of Jasper,
We may observe that the jurisdictional facts required to affect that subject-matter in the attempt to improve by such assessments are recently catalogued in Byars et al. v. Town of Boaz et al. (Ala. Sup.)
It is further established that the failure of the owner to "object" or make "defense" under the statute to the proposed assessment, or that made by duly constituted municipal authorities, will prevent a successful challenge of the facts entering into such action and judgment; and such failure, under the statute, is to be held "as a consent *526
to the assessment," and such assessment cannot be collaterally assailed. Gen. Acts 1927, pp. 753, 765, § 25, amending section 2196, Code; City of Mobile v. Smith,
It follows, from these decisions, that the failure of the owner of a parcel of land to duly contest an assessment on or against that parcel of land assessed to the owner (as indicated by the statute and our construction thereof), rather than as that against each lot as may have been subdivided by that owner and held by him when the assessment is made, is an effectual adjudication, by the duly constituted municipal authority, that with the consent of the owner the land so affected constituted but one parcel within the statute as amended and construed. Gen. Acts 1927, pp. 753, 765, § 25; Montgomery, Superintendent of Banks, v. City of Florence,
The decree of the circuit court is contrary to the construction given in Montgomery, Superintendent of Banks, v. City of Florence, supra, to the effect that an abutting parcel consists of all of a contiguous area of land in and under one general ownership and which has a boundary coincident with a boundary of the improved street; and no due objection being made by the owner and timely invocation to apportioned assessments against the lots, it is immaterial that such parcel of land be subdivided into lots or areas that may be subject to one or more mortgages to one or different mortgagees. City of Birmingham v. Emond, ante, p. 346,
It must be observed, as was conceded by counsel, that if appropriate action, objection, or protest be made and reserved to such assessment in parcel rather than by the several lots of the survey held by the one owner, an abuse of the power of such assessment in gross or parcels, rather than against the lots of the survey, would be corrected on appeal after due protest. In Peoples v. State Security Bank,
The record shows no arbitrary action or abuse of power in assessing in gross plat lots 11, 12, 13, and 14; and if such there was, it was foreclosed against appellee-owner by failure of due protest and appeal.
It is obvious that the original map or plat lots were made with a view of sale and use of the lots in question on Avenue U; that from the map exhibited, the opening and paving of Nineteenth street altered that use and the possibilities of the owner (Waldrop), and rendered useless the old survey and plat. It was not arbitrary for the commission to treat the lots as a single parcel fronting and abutting on Nineteenth street, which was opened and paved, and to so make the assessment. It worked no hardship on Waldrop, the owner, nor on his mortgagee, Terrell, for that if Waldrop should fail to pay the superior lien of the assessment, mortgagee may do this and be subrogated to the rights of the city on the whole assessed area as increased in value by that improvement. Hughes v. Howell et al.,
The decisions in Montgomery, Superintendent of Banks, v. City of Florence, and City of Birmingham v. Emond, supra, established the power of the city to assess for street improvements, where the area so assessed is in one joint ownership, or several general ownerships, and abuts upon the street so improved. The failure of protest, by Waldrop (the owner) or Terrell (the mortgagee), as to the method of assessment employed, waived any objection that may be made by that assessment affecting or affected with a single lien on the several plat lots in question. Montgomery, Superintendent of Banks, v. City of Florence,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
