258 F. 190 | 8th Cir. | 1919
The city of Oklahoma City in 1908 deemed it necessary to pave Classen boulevard. In 1911, it deemed it necessary to pave Linwood boulevard, from the west line of Western avenue to the center line of Tenth street, and also Exchange av-erme. Proceedings were regularly taken as provided by law for the construction of said paving. The benefits resulting from said paving were assessed upon the lands fronting or abutting thereon. The contractor constructing the paving was paid by the issuance by the city of improvement bonds, to be paid by the money arising from the collection of the assessments made for benefits. The defendant in error, hereafter plaintiff, purchased all the improvement bonds issued for said paving from the contractor, for value, and without notice of any defect in the benefit assessment.
Along the center of Linwood boulevard, Exchange avenue, and Classen boulevard, an electric railway company, hereafter Railway Company, occupied and used a right of way which it had curbed and otherwise improved. The paving done by the city on the boulevards and avenue above mentioned was on the driveways located on both sides of the right of way. The Railway Company refused to pay the amount of the benefits assessed against it, and this fact prevented the accumulation of a sufficient fund to pay all the improvement bonds and interest thereon. The Railway Company claimed that its right of way did not front or abut upon the pavement, within the meaning of the law authorizing the construction of the pavements. Under these conditions the plaintiff made a demand upon the city to cause a new assessment of benefits upon property liable therefor, in order that the bonds owned by him could be fully paid. The city having, as claimed by the plaintiff, unreasonably delayed to make a new assessment, the present suit was brought against the city on the theory that it was liable on account of its willful neglect and refusal to perform a duty imposed upon it by law to create a fund necessary and essential under the obligations contained in the bonds for the purpose of meeting the payment of the installments and interest due thereon.
There were four paving contracts involved in the improvement-mentioned, two for Exchange avenue, and one each for the boule
Before, however, proceeding to consider the assignments of error, it,is proper to say that, since the trial of this case below, the Supreme Court of Oklahoma, in the case of Oklahoma Railway Co. v. Severns Paving Co. et al., 170 Pac. 216, a case involving the right of the city of Oklahoma City to assess the right of way of the Railway Company for benefits resulting from paving of the character described in this action, has decided that, where the Railway Company’s title to its right of way amounts to a fee title, the assessment of benefits for paving is valid. The decision of the Oklahoma Supreme Court in the case cited was based upon a construction of the statutes of Oklahoma and particularly sections 511, 1175, and 1382, Raws of Oklahoma 1910, and is binding on this court so far as it construes said statutes. The Supreme Court of Oklahoma in the above case affirmed a judgment awarding a mandamus compelling the defendant to make a new assessment. The record in the present case shows that, as to the paving mentioned in the first count, the grant of the right of way of the Railway Company was in perpetuity. The right of way involved in the second and third counts was obtained in part by a grant from the Park Site Realty Company for use as a right of way, with reverter to the grantor upon the abandonment or discontinuance of such use, and in part by dedication from the Packing House Development Company in fee simple and as a right of way without limitation, and in part by grant from Edward Morris, with right of reverter in the grantor in case of the abandonment of such right of way.
We now come to consider the assignments of error urged by the defendant. So far as the validity of the assessments for benefits charged against the Railway Company’s right of way is concerned, we have already expressed our views following the decision of the Supreme Court of Oklahoma in Railway Co. v. Severns Paving Co., supra. The first count is eliminated from consideration for the reason that the assessment was valid, and the plaintiff is subrogated to the rights of the paving contractor, and can enforce the payment of the benefits assessed for the payment, of the paving involved in the first count. The portions of the pavement involved in the second and third counts where the Railway Company’s title to the right of way amounts to the fee, under the decision of the Supreme Court of Oklahoma in the case above mentioned, are also eliminated. The question then for consideration is: May the plaintiff recover in this action a general judgment against the city for the proportionate amount of the invalid assessments represented by all of the fourth count and a portion of the second and third? Taking up the assignments of error in their order:
First. There was no error in denying the motion to make the complaint more definite and certain. The matter was discretionary, and no prejudice resulted.
Third. There was no error in admitting in evidence the claim filed by the plaintiff with the city officers. It was admissible on the question of notice of the invalidity of the assessments and on the question of negligence.
Fourth. There was no error in admitting the testimony of the witness Shartel concerning the building of sewers to drain the right of way of the Railway Company. While the evidence was not very material, it tended to show that the Railway Company had performed what it thought was its duty in the premises. It was not prejudicial in any event.
Fifth. There was no error in the introduction in evidence of the record in case No. 12380, Cleveland-Trinidad Paving Co. v. City of Oklahoma et al. The record was introduced in rebuttal of the testimony of Whit M. Grant, who had testified that he had no recollection of .ever being informed as to the decision of the local district court with reference to reassessments.
Sixth. The claim that the power to pave is under the law and Con-, stitution of Oklahoma given to the city officers, and not to the city, has no merit.
Seventh. When the verdict in this case was directed, the defendant requested the court to limit the judgment, so that it could be collected only from benefit assessments. There was no error in this ruling.' The city, if liable at all, was liable generally as for negligence and refusal of duty.
Eighth. It is our opinion that the contractor could have maintained this suit if he still owned the bonds, and, having sold them to the plaintiff, the latter can maintain it. The city owes the duty to levy the new assessment to the one who owns the bonds.
Ninth. We have no dispute with the holding of the Supreme Court of Oklahoma that the determination of the amount of benefits is a legislative act and final, but this rule has no application where the property assessed is not liable for any assessment.
Tenth. The bonds upon which the verdict was directed were payable to bearer. They were all produced in court, and that was prima facie proof that the plaintiff was the owner.
Eleventh. The allowance of an amendment to the complaint at the trial, to the effect that the plaintiff sued for himself arid, other parties similarly situated, while probably erroneous, was not prejudicial. No recovery was had for any one except the plaintiff.
Both parties at the close of the evidence requested a directed verdict. The defendant, however, requested the court, in case his.motion should be denied, to charge the jury in certain particulars. These requests to charge have been examined, and they present no reason why the verdict should not have been directed for the plaintiff. The entire record convinces that there is substantial evidence to sustain the verdict directed by the court, and that there was no error committed in this behalf.
The judgment on the first count is reversed. The judgment on the fourth count is affirmed, and the judgment based upon the second and third counts is reversed, and the cause remanded as to those counts, with instructions to the trial court to grant a new trial as to the amount due the plaintiff in the instances where in this opinion the assessment of benefits would be illegal. No costs to be taxed as against either party in this court.