| Ala. | Jul 6, 1910
The respondent, Mary E. Wagenseler, is the owner of the west 100 feet of the east 200 feet and
On the 3d day of August, 1904, an ordinance was regularly passed by the mayor and aldermen of Birmingham, providing for street grading, curbing, and sidewalks and glitter paving on Avenue 1, from Twenty-Second to Twenty-Third street. The said lots of respondent abutted on part of Avenue 1. The contract for the construction of this work was regularly let to one C. M. Burkkalter on May 16, 1906, said contract being drawn under the provisions of said ordinance and in strict conformity therewith, and said work was done by said Burkhalter in strict conformity with said contract, and was finished before the 3d day of April, 1907. All ordinances and resolutions were passed by said mayor and aldermen of Birmingham necessary and proper according to the charter of said city for the doing of said work and the assessment of charges against the owners of property abutting on said avenue for the improvements so made.
Within 12 months after the grading of the street in front of the property in question, the respondent, Mrs. Mary Wagenseler, presented to the board of mayor and aldermen of Birmingham a claim for damages by reason of said grading, amounting to $4,000, which was declined by said board, and on the 25th day of March, 1907, after said claim had been disallowed, she brought her suit in the city court of Birmingham against the complainant for the amount of said claim. Said complainant on the 3d day of April, 1907, assessed against the said lots of respondent the sums of $477.42 and $245.31, respectively, for the improvements alleged to have been made, and the said respondents failing and refusing to pay said assessment, having brought suit against complainant in said city court claiming damages to said
The question upon which all of these matters depend is, was the assessment against the lots of respondent a valid assessment for any amount? If it was, then complainant had a lien upon said lots for the amount due, and the ruling of the chancellor was erroneous. But, if the assessment was not valid for any amount, then there could not be any lien upon said lots, and said bill could have no standing in the court, and the chancellor properly dismissed said bill. Furthermore, if said bill was properly dismissed, the claim set up in said cross-bill being purely a legal claim, and respondent having an adequate remedy at law in the suit already filed in the city court of Birmingham, which had been temporarily enjoined, the injunction was properly
Sections 55, 56, 57, 58, 59, 60, and 65 of the charter, and its amendment, of the city of Birmingham, are made exhibits to the bill. By virtue of the authority given in said sections, the grading of the said avenue and sidewalk was done, and the assessment against the abutting property was made. Section 57 is in part as follows: “Be it further enacted, that if said improvement be finally ordered and constructed, the board of mayor and aldermen shall have the power and authority, after completion and acceptance thereof, to assess the total expense of constructing said improvement upon or against the several lots or parcels of land abutting the portion of the streets, avenues or sidewalks improved, * * * in proportion to the amount of benefit accruing to each, and all such assessments shall be and constitute a lien on the respective lots or parcels of land upon which they are levied, superior to all other liens, except those for state and county taxes.” The respondent having filed with the city her claim for damages, which was disallowed and then having brought suit in the city court of Birmingham for such claim of damages before the assessment was made by said city, the complainant can claim no advantage by reason of the fact that she did not appear before the mayor and aider-men to protest when notified in accordance with the charter and ordinances of said city. Her claim for damages and suit for same were not only a claim for damages for injury done by the said city to her said property, but was a most emphatic protest against the right of the city to assess any amount against her said property to help pay for such grading and fixing of said avenue and sidewalk. In other words, if said lots were damaged by said work, the city was not entitled to aS
Upon a careful examination of the evidence, we are of opinion that complainant wholly failed to show by a preponderance of the evidence that the value of the said lots was increased at all, or to show any right to make any assessment against the same to help pay for the work done. If such assessments are to be made “in proportion to the amount of benefit accruing to each,” then it would seem clear that, if there were no benefit, there could be no assessment.—City Council of Montgomery v. Foster, 133 Ala. 596, 32 South. 610; City Council of Montgomery v. Birdsong, 126 Ala. 632" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/city-council-v-birdsong-6518656?utm_source=webapp" opinion_id="6518656">126 Ala. 632, 28 South. 522. The plaintiff having failed to establish by a preponderance of the evidence any valid assessment against the lots of respondent abutting on said Avenue 1, there was no lien to be enforced, and its bill was properly dismissed. The injunction also was properly dissolved and the cross-bill dismissed, since there was no equity in the cross-bill and respondent had an adequate remedy at law in the suit that had been enjoined.
The decree of the chancery court is affirmed.
Affirmed.