143 So. 168 | Ala. | 1932
The city of Ozark, under the municipal public improvement statutes authorizing municipalities of this state to improve its streets and to levy the cost thereof against the abutting property owners made certain improvements upon Eufaula street of said city. The appellee's property abutted upon that street. After making the improvements, which consisted of the contruction of "storm drains, concrete sidewalks, concrete curbs and gutters and brick street paving on concrete base," the appellant undertook to levy the cost of the same, within constitutional limitations, upon the abutting property. The city of Ozark, acting through its duly constituted authorities, levied an assessment against the property of this appellee in the sum of $684.08. From this assessment the appellee appealed to the circuit court, under the provisions of sections 2204 and 2205 of the Code (as amended by Acts 1927, p. 767). The only question litigated upon the appeal was the increase in value, if any, of appellee's property by reason of the special benefits derived from the improvements, and whether or not the assessment exceeded such increased value.
The jury rendered a verdict in favor of the defendant upon the issue, and judgment was entered accordingly.
But few errors are assigned upon the record. The evidence was in sharp conflict, and we cannot affirm that the trial court committed reversible error in overruling the appellant's motion for a new trial. While it is scarcely conceivable that residential property, located as appellee's property is, was not enhanced in value by reason of the special benefits derived from the construction of the paved road, storm sewers, concrete sidewalk, curbs, and gutters, yet the enhancement vel non was a question, in this case, to be determined by the jury, and their verdict should not be disturbed unless palpably wrong; and the decision of the trial court, refusing to grant a new trial on the ground that the verdict was contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone Collins,
It is insisted by appellant that the court committed reversible error in charging the jury in the terms of appellee's given instructions (which we have numbered for convenience 1, 2, 3, and 4). While given charges 1, 3, and 4 use the term of "special benefit to the owner," and for that reason were possibly misleading, and might have been refused without error, yet the case will not be reversed for that defect; the charges being otherwise unobjectionable. If the appellant conceived that they had a tendency to mislead, explanatory charges should have been requested. Harris v. Basden,
Section 223 of the Constitution provides: "No city, town, or other municipality shall make any assessment for the cost of sidewalks or street paving, or for the cost of the construction of any sewers against property abutting on such streets or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the specialbenefits derived from such improvements." (Italics supplied.)
In the case of Ex parte Hill (In re City of Tuscaloosa v. Hill),
And in the case of Hamrick v. Town of Albertville,
In the case of Stovall v. City of Jasper,
" 'In order to justify a local assessment, the improvement must not only be public in its nature, but must confer an especial and local benefit upon the property which is to be assessed therefor.'
"Such is the plain effect of the Constitution and such is the generally accepted law of the subject. Cases to that effect are cited in the footnote to section 284 of 1 Page and Jones on Taxation by Assessment. Perhaps no better definition of special benefits can be formulated than the simple one that benefits are special, when they presently increase the value of the land sought to be condemned to a public use."
Whatever gives an additional value to the particular parcel of land is declared in Lipes v. Hand,
No doubt, had the appellant requested the trial court, after it had given charges 3 and 4, at the request of appellee, to define the term "special benefits," it would have done so, and this would have counteracted any tendency of the charges to mislead the jury.
The court, over the timely objection of the appellant, allowed the appellee to propound the following questions to the witness, T. C. Godwin, city clerk of the city of Ozark:
"Was [sic. were] there any witnesses brought before the mayor and board of aldermen to show that the value of this property was when they rendered that judgment?" and
"You don't recall that there were any witnesses brought before the mayor and the board of aldermen as to whether there was any increase in the value of the property or not, and so far as you know then it was assessed by the mayor and the board of aldermen without any witnesses testifying to the value of it, wasn't it?"
To the first question, the witness answered, "I don't recall that there was." And to the last question, the witness answered, "I don't recall that they did."
Waiving aside, as immaterial, the grammatical construction of the two questions, the questions should not have been allowed, and the court committed reversible error in overruling appellant's objections to said questions. The questions called for illegal, immaterial, and incompetent testimony. The evidence was admissible for no purposes of the case, as presented on the appeal to the circuit court. Stovall v. City of Jasper,
The court committed error in overruling appellant's objection to the following question propounded by appellee to the witness Hill: "Is it any more benefit to Mr. Byrd there than to the general public?" This question undoubtedly called for an opinion and conclusion of the witness. The objection should have been sustained. City of Huntsville v. Pulley,
If the plaintiff (appellant) had confined his question to eliciting from the witness Robert Holman the fact that he was one of the protestants, the question would no doubt have been allowed. It is competent in proceedings like the present, to show the bias, prejudice, or interest of witnesses. Hamrick *336
v. Albertville,
We have carefully reviewed the entire record in this case, and the only errors which call for a reversal of the judgment are set out above. We find no other reversible errors in the record.
For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.