87 W. Va. 750 | W. Va. | 1921
W. H. Sleeth and forty-four other persons, all residents of the city of Elkins in Randolph County and owners of real estate therein abutting on the streets of that city, presented their bill for injunction against the city of Elkins to the Judge of the Circuit Court of that county on September 1, 1920, alleging, substantially, that they were such residents and owners of real estate similarly situated, and were aggrieved by orders of the city council, which had required them to tear up and abandon the brick sidewalks in front of their lots and dwellings on certain streets and to construct in lieu thereof cement sidewalks; that in pursuance of an order to that effect, passed by the council on May 26, 1920, notices were served on the plaintiffs to construct cement sidewalks within 30 days, or the city .would do so and the cost thereof would be charged against their abutting property and collected as other city taxes are collected; that upon petition signed by a number of the plaintiffs, presented to the council, asking for a rescission of the order, the council deferred action until the city engineer could make an examination of the sidewalks in question and report thereon, which report was filed on July 2, 1920, when the council again ordered the cement
1. Whether equity has jurisdiction to entertain this suit under the points raised by the demurrer to the effect that there is no jurisdiction to enjoin the City from advertising and letting contract to tear up and rebuild the walks in question under the general powers of the City to reconstruct the walks and pay for same out of general taxes, and that equity could have no jurisdiction until the City attempted to collect or at least levy the special assessment for the cost of said construction.
2. Whether equity has jurisdiction to entertain this suit under the points raised by the demurrer to the effect that there is no jurisdiction to enjoin the city from advertising and letting contracts to tear up and rebuild the walks in question under the general powers of the city to reconstruct walks and pay for the same out of general taxes in the first instance, and thereupon levy the cost thereof as a special assessment against the abutting property, and that equity could have no jurisdiction until the city attempted to collect, or at least, levy, the special assessment for the cost of said construction.
3. Whether, under the charter of the city of Elkins, the defendant can compel the plaintiff to tear up the brick sidewalks which have already been laid pursuant to a former ordinance of said City, and replace the same by a cement walk under a new ordinance.
4. Whether the City of Elkins, after first having .estab*754 lished grades for sidewalks, and the same have been laid pursuant to ordinance, can now establish.a different grade, raising the walk in front of some lots and lowering it in front of others,- and compel the lot owners to lay a new walk on the new grade.
The first two questions are answered in the affirmative by this court in the cases of City of Avis v. Allen, 83 W. Va. 789; and Damron v. City of Huntington, 82 W. Va. 401. These plaintiffs were served with notice to lay the cement sidewalks within 30 days, or failing to do so, the city would lay the same at the expense of the plaintiffs, to be charged against their abutting land and collected as other city taxes were collected. Should these plaintiffs stand by and wait until the work had been done, afterwards claiming that it was illegally done, and that it was unlawful to charge their property with the cost thereof, they might have waived their right to question the validity of the assessment when made. Knowing facts-which would make the assessment illegal, and then permitting the work to be done, might estop them from preventing the assessment or paying the money. Avis v. Allen, supra; Werninger v. Stephenson, 82 W. Va. 367. It is not in all cases that an abutting land owner would be estopped from suit even after the special assessment is laid. If the proceedings were void then he would not be; but if irregular or voidable only, he would be estopped. Moundsvillo v. Vost, 75 W. Va. 224.
Injunction is the proper remedy. 28 Cyc. 1014. "An injunction lies against a municipality to enjoin the removal by it of a bride sidewalk where it appears that to permit the performance of such act would be to allow a breach of trust and an abuse of power sought to.be exercised in bad faith to 'the wanton injury of the'rights and property of individuals.” 120 Ill. Ap. 70.
Certified questions 3 and 4 are in part answered by sec. 1 of chap. 20 of the charter and ordinances of the city of Elkins. There can be no question of the broad powers of the city to order the sidewalks to be paved or repaved and kept in order, and to be constructed in .such manner and of such material as in the judgment of the council are most suitable, and for the best
....-While the-regularity and sufficiency of the ordinances and ■proceedings of the city council with reference to these' side
We sustain the'action of the lower court in overruling the demurrer. • -
Affirmed.