City of Mobile v. Mobile Light & Railroad

| Ala. | Nov 15, 1904

ANDERSON, J.

This is an appeal by the City of Mobile from a decree of the chancellor, sustaining demurrers to its bill filed to declare and enforce a lien against the appellee for its proportionate share of the cost of paving, curbing and underground drainage.

The bill avers the letting of the contract for the work and the cost thereof in a certain district and avers that appellee's line was laid on some of the streets in said paved district. And seems to arrive at the portion due by the appellee, by ascertaining what proportion its territory bears to1 the area of the streets over which it runs, and what proportion the cost for said streets bear to the cost of the improved district, thus adopting the total cost as the ratio for an apportionment, and which includes the cost of paving, curbing and underground drainage.

It is true that § 85 of Acts 1900-01, p. 2397, does provide for an estimation of the cost and an apportionment thereof between those who may he liable. But we can not see how- said section contemplates the fixing of ap-pellee’s liability on an esimate which includes the cost of improvements on parts of streets over which its line does not run. It may have cost more to improve one part than another. And under no contention could the share of the Mobile Light- & Railroad Company exceed what the cost of its area bears to the cost of improvements on that part of the street over which its line is laid.

Conceding, however, that the proper method has been pursued'for ascertaining the‘liability of the appellee. The question arises, does the statute under which this company is made liable for the cost of paving, permit the city of Mobile to include in its claim the cost of curbing and the “laid under drainage?” .

Section 91 of the act is as follows: “Be it further enacted, That should there be a street, electric or other railroad or railway upon any street or alley determined to he paved the cost of paving between and wider the rails of such tracks and eighteen inches on either side of such track or tracks, including switches mid turnouts , [italics ours] shall be paid by the owner or-owners of such roads, and. shall be assessed and collected from such owner or owners, and shall be a lien upon the property of such person or company, in the same manner as hereinbefore provided for as to other property owners. And should any street, electric or other railroad or railway be constructed upon any street which has been previously paved under this act, the owner or owners thereof shall, before beginning such construction, pay to the city clerk the cost (if paving, between the rails of the tracks contemplated and eighteen inches on each side of such tracks, including switches and turn outs.”

A municipality must derive its power to exact, regulate and require, from the legislature and which is, in this instance, contained in the act under discussion, providing a charter for the city of Mobile, The pow-era thereby authorized are to be strictly construed, and we can only infer that the draftsman of this law had in view the reservation of the city in the granting of the franchise to appellee and desired to obtain by said act the authority for the enforcement thereof. The most that is required of the street railway company is the payment of the cost of paving between the rails of the track and eighteen inches on each side of same, including switches and turn outs. We also find in paragraph “e” of section 85, “what portion of said paving or improving shall he.; paid for by street, electric or other railroads, for paving hd-ween their trades and eighteen inches on cadi side thereof." [Italics ours.]

We think, under a. strict and proper construction of Ihe act, that the appellee is only liable for paving that area between its rails and for eighteen inches on the outside thereof. The writer is unable to see how underground drainage or sewerage can come within the head of paving.

Mr. Booth on Street Kail ways, 240, in defining pavement, -says: “The existence of the obligation, often depends upon the interpretation which may be fairly given to the statute or ordinance prescribing the duties of the company.”

We find that the statute1 in question, both in sections S5 and 91 imposes upon railways, only the cost of paving between the rails and eighteen inches on each side thereof. The case relied on by counsel for appellant in support (if his contention that curbing is embraced in paving, (Williams v. Mayor of Detroit, 2 Mich. 577), was the construction of an ordinance for paving the entire street and was between the city and a property owner. The court therein held, that some grading was necessary in preparing a foundation for the pavement and which was a necessary' incident to the paving itself. “The curbs and gutters, cross streets and cross walks were all to be done with stone and constituted one connected work and wore a, part of the paving.” It has been also held in Warren v. Henly, 31 Iowa 31" court="Iowa" date_filed="1870-01-27" href="https://app.midpage.ai/document/warren-v-henly-7094808?utm_source=webapp" opinion_id="7094808">31 Iowa 31, that the word “pave” includes the usual means to cover the street, including the authority to require them to build sidewalks and to provide for tlie proper drainage and for tlie construction of gutters. The issue, however, in each of the: foregoing case's was between the respective cities and the property owners and the controversy was over paving the entire street.

We do1 not pretend In hold in this case that paving does not include curbing and certain kinds of drainage, or that the appellee would not be liable for the preparation of the foundation for the reception of tlie pavement or for such curbing as might be deemed necessary for drainage and which has been placed Avithin that territory betAveen its rails or Avithin eighteen inches on either side thereof. But we cannot conceive of any liability on the part of the company, under the terms of the statute, for any cost that may have been incurred by the city of Mobile for curbing or drainage beyond the confines of the appellee’s territory.

We cannot agree with counsel for the appellant in his contention, that the assessment, made was conclusive under the terms of § 88 of said act. Section 87 requires notice to be given by publication in a newspaper, and by mailing a notice to each abutting oAvner, whose name and address is known. Section 91 provides that the assessment and collection from the owner of railways shall be made and collected as herein provided for as to other property owners. It will be¡ observed that the notice to this respondent, shall be the same as that to be given to other property owners; yet the bill fails to aver the mailing of a notice-to the respondent, and the assessment cannot be conclusive in the absence of the giving of the proper notice.

Affirmed.

McOLELLAN, O. J., Tyson and Simpson, JJ., concur' ring.