Catts v. Town of Smyrna

The objects of the bill being to enjoin a sale of personal property advertised for sale by a municipality in collecting an assessment for the cost of laying pavement, curb and gutters in front of land of the complainants, and in addition to effect a cancellation of the assessment, it becomes necessary to inquire first as to the jurisdiction of the court to hear and determine the matter. This question was raised by the defendants at the argument, and it was claimed that as the complainants sought to enjoin the sale of personal property the court had no jurisdiction. The law on this subject is settled in this State by the Court of Errors and Appeals in Murphy, et al., v. Wilmington, 6 Houst. 108 (1880), 22 Am. St. Rep. 345 . Some of the principles there stated were evidently overlooked by the same court in the case of Fulton v. Dover, 8 Houst. 78 (1888), 6 Atl. 633 , 12 Atl. 394 , 31 Atl. 974 , but Murphy v. Wilmington was not there cited or considered, so far as the report of the case shows, either in the Court of Chancery or in the appellate court, and there is nothing in the later case overruling the earlier one. The cases of Curry v. Jones, et al., 4 Del. Ch. 559 , and Sharpe, v. Tatnall, 5 Del. Ch. 302 , if they' be in conflict with Murphy v. Wilmington, are not authoritative.

The law as stated in Murphy, et al., v. Wilmington is binding on this court, and furthermore is based on sound reason and the decisions of other courts elsewhere. In that case the bill was filed to enjoin the collection of an assessment made on

“The owner of personal or real property, seized or sold under execution for the collection of an illegal municipal tax, has an adequate remedy at law, either by paying under protest the amount demanded, and bringing an action against the city to recover it back, or by an action of trespass for the recovery of damages. In the case of a sale of real property under a void assessment, as in the case of a sale by the sheriff on a void judgment, the purchaser buys at his peril, and the owner may fold his arms in defiance, or, if dispossessed, maintain his rights by an action of ejectment. Under such circumstances the owner can sustain no irreparable injury, and would suffer a loss only by his own passive submission to a wrong. A party claiming title under a corporation tax sale must show that every prerequisite to the power of sale has been complied with, and compliance with law must appear on the face of the proceedings.”

The remedy by certiorari is also referred to as generally furnishing adequate relief in such cases. From this decision it is clear that if the sole relief sought by the complainants in the case now before this court had been to enjoin the sale of personal property, there would be at least a serious question as to the jurisdiction of this court to grant relief. But there is in this case a lien upon land of the complainants arising from the work done by the town of Smyrna on land of the complainants. Whichever of the two acts of the General Assembly hereinafter referred to applies to the municipal improvements in question, there is a lien on the land abutting the place improved. Both statutes make the cost of sidewalks, curbs and gutters liens on the abutting land. Therefore, if the assess

“A lien or incumbrance, to throw a shadow upon title to real property so as to give the owner a right to relief in equity, must be one that is regular and valid on its face, but is in fact irregular and void from circumstances which have to be proved by extrinsic evidence.”

In the case cited the court found that all the points relied on to show invalidity of the assessment appeared from the statute and the journals and records of the city government, and did not call for any outside evidence for the purpose of testing the validity of the assessment there made, and so the Court of Chancery had no jurisdiction. In the case now before this court, however, it is urged that the assessment was invalid because the curb and gutter were laid about two feet further east than it should have been, and was laid partly within the confines of the highway as fixed by law at forty feet, whereby the highway is narrowed to about thirty-eight feet. So far as now appears this alleged error in locating the curb and gutter is not shown anywhere in the town records, and would not be shown in a certiorari proceeding. Therefore, as evidence outside the municipal records must be given to establish the error, the cloud on the title arising from the lien is such a one as a court of equity will grant relief, if the error is shown. Though not clearly shown by the allegations of the bill, still taken in connection with the answer it does appear that the court has jurisdiction to determine the validity of the assessment for the reason above stated.

In order to decide the several questions raised by the complainants, it is necessary first to determine which of two statutes applies. The general charter of the town of Smyrna was a re-incorporation in 1897 by Chapter 537, Volume 20, Laws of Delaware. By it a system of municipal government was provided, giving the town council the power to require pavements to be laid and curbs and gutters constructed by

In 1909 an Act was passed (Chapter 186, Volume 25) authorizing the town council to improve the roadways of the town between the curb lines, which did not include laying sidewalks or the improvement of the portion of the street between the curb and the building line of the abutting owner. The Act provided that council might select certain streets to be só improved, and when the work was done were required to assess against the abutting owners on each side of the street the cost of improving three feet of the roadway outside the curb line. The sum payable by each owner is to be then listed and advertisement made by posting the list. After an opportunity for objections, the list is to be certified to the collector of town taxes for collection. Owners of land may elect to pay in installments. After thirty days’ default the collector may levy on the land and sell it. The amount assessed against each parcel of land is made a lien thereon. The town is prohibited from spending, in addition to what is assessed against the owners, more than $25,000 in such improvements, and this sum must be raised by an issue of bonds by the town. All moneys collected from abutting owners and obtained by the bond issue were payable into a "special fund, which could be used for no other purpose.

The complainants claim that the charter provisions of 1897 apply to the paving of the sidewalks of the streets, and that the Act of 1909 is the only one that now applies to curb and gutter construction, it being to that extent a permanent amendment to the charter. As a consequence of so holding there are two methods of municipal improvements. As to the

The complainants urged that there was another error in the assessment which invalidated it, viz., the location of the curb and gutter about two feet too far east. This objection applies whichever Act is held to be controlling.

The charter provisions, and not the Act of 1909, apply to the assessment in question, and its validity is to be determined by it. It is clear that the later statute was for a special temporary purpose, and was not intended to be an amendment to the charter. Evidently the purpose was to spend a certain sum to be obtained not by taxation, but by borrowing it on town bonds; and with the money so raised and with what could be collected from abutting owners, to repave and so improve the roadway of some of the streets of the town and for this purpose the abutting owners were made chargeable with a portion of the cost of such improvements, including the cost of three feet on each side of the curb line. When the sum so borrowed by the town was exhausted there could be no further improvements made under the Act, and thereafter the charter provisions applied. This is made clear by the fact that otherwise there would be two remedies for collecting from abutting owners the cost of improving streets. New sidewalks would be governed by one Act and the curb, gutter and roadway by another Act differing widely from the earlier one. The differences between the two Acts are such that the later one does not effect a permanent amendment to the charter. Besides, it appears affirmatively by allegations of the answer, which are taken to be true, that before the council determined to pave, curb and gutter the street in question in front of the complainants’ land, the special purposes of the Act of 1909 had been fulfilled, and all the money borrowed under it had been spent. It is also an important fact, appearing from the answer,

The validity of the assessment is attacked in the bill by the want of a notice to the abutting owners, as required by the charter. Statutory requirements to abutting owners to make improvements already determined on are for the benefit and protection of such owners and are generally regarded as mandatory. So that if omitted the assessment cannot be collected from the abutters. 4 Dillon on Municipal Corporations, (5th Ed.) §1457 (other edition, §§803, 804).

It is objected by the complainants that the notice required by Section 12 of the charter of 1897 was not given to them. The allegations in the bill as to the want of such notice is met' by the answer. The ordinance directing by name the owners' of land situated on the west side of Main Street to lay pavement, curb and gutter along the west side of the street was passed June 23, 1911, and on June 26, 1911, “a notice was served oh the then owners, Samuel Catts, Charles Katz and Sarah E. Cuningham directing them to cause the paving, curbing and guttering required by the ordinance to be done,” and a copy of the notice so given was attached to the answer as an exhibit." This allegation is taken to be true in .this method of hearing this cause, -viz., on a motion for • a decree notwithstanding-answer. But it is urged that the form of the notice is defec-. fcive, and, therefore, the notice was insufficient. By attaching to the answer the form of the notice probably the defendants-gave the complainants an opportunity for the making of the objection. The complainants urge that the notice is insufficient because it appears from the notice that it was given by the “commissioners,” or “board of commissioners” of Smyrna, instead of by the town council, and, further, that it was signed' by “Harry B. Grieves, Secretary,” when it should have been signed by the clerk of council.

The charter says that the owners shall be notified to make-

The form of a notice, unless it be prescribed by law, is not important, and will not be critically considered so long as it fairly and fully apprises the person to be notified of the subject-matter of the notice. It surely appears in the notice under consideration with sufficient clearness that the town council of Smyrna had acted and required the paving and other work to' be done by the owners in such manner as to meet the approval of the council; and the mistake in calling the council the commissioners, or board of commissioners, and the statement of his official title to be that of secretary instead of clerk, were quite unimportant and immaterial. By the language of the notice served on the owners it appeared to have been given by an official body with authority in the premises, and the notice sufficiently apprised those to whom it was directed of the duty required of them. This 'notice is sufficient, without relying oh the further allegation' of the answer that one óf the co-owners was frequently requested by officers of the town, or members of the council to comply with the ordinance.

It is, of course, not a valid objection that the improvement Was not needed. Of this the town council was the sole judge,

It was further urged by the complainants at the argument that, after June 26, 1911, when the notice in question was served, and before the work of paving, etc., was done by the council, Sarah E. Cuningham, one of the three co-owners of the land, had died and the title to her share had descended to her heirs at law, her two children, both of whotaa are complainants and also that during the same interval, as appears from the charter, there had been an election in the town of Smyrna. In the brief of- the complainants’ solicitor it is stated that Sarah E. Cuningham died in October, 1911, and that the paving, etc., was done in August, 1912. From these assumed facts it is contended that the change of ownership, the change in the membership of the town council and the unreasonableness of the delay in making the improvements each rendered the assessment invalid. But it does not appear in the record when the work was in fact done. By the account rendered to the owners dated May 8, 1913, (complainants’ Exhibit A) it is only stated that the work was done in the year 1911 and 1912, and the defendants’ answer says that Sarah E. Cuningham died in the fall of 1911. Therefore there does not appear of record any evidence to show unreasonable delay, even if that be a valid ground of objection; nor does it appear that there was any change in the membership of the town council as a result of an election, if in fact one was held in the interval above mentioned so that this is not debatable as an objection, and no opinion is expressed as to the sufficiency of such objection.

It does appear as a fact, however, that in the interval after the passage of the ordinance ordering Sarah E. Cuningham and the other two tenants in common to do certain work in a certain manner in front of this land, and after the giving to them of a notice to do the work, and before all of the work was done, Sarah E. Cuningham died and her share descended to two of the four complainants. Does this change of title so occurring render invalid the whole assessment? Clearly not. The work may have been begun in the lifetime of Sarah E. Cuningham. Even if the work had been begun and done after her

Even taking the facts to be as stated by the complainants’ solicitor, viz., that after the three tenants in common owning the land in question had been notified in a legal manner to make certain street improvements in front of their land, and before the work was done by the town fourteen months later,' one of the tenants in common died, and her share in the land descended to her heirs at law, who are complainants in this cause, still under the other facts in the case the changes of ownership and delay would not invalidate the assessment. As herein above indicated, the heirs of the deceased tenant in common, who at her death was in default in not complying within thirty days with a valid notice to make the improvement, took title subject to any buirden or duty imposed upon their ancestor by the proceedings taken by the town. The delay in making the improvements was the fault of the abutting owners and not of the town. Nothing was done by the town to waive any right, or to relieve the owners from any duty; but on the contrary the owners were on several occasions urged by officers of the town to make the improvements. Neither the death of one of the owners of the land, or the lapse of time, invalidated an otherwise valid assessment.

The point chiefly relied on to show irregularity in the assessment is that the curb and gutter were constructed in the wrong place, in that 'they were placed'more than six feet east of the north side of the street, and, therefore, encroach on part of the highway by extending about two feet east of what should be the true line of the curb. It is claimed, that being an illegal encroachment on the highway, it is an unlawful structure and

To determine whether the assessment for the curb and gutter is valid, it must be found from the admissions or allegations of the answer that the facts are as claimed by the solicitors for the complainants in their argument. The allegation of the bill respecting the error of location is categorically denied by the answer, and without the evidence of the plot attached to the answer, and other statements in the answer, there would be no evidence of such erroneous location. Attached to the answer is a plot made since the proceeding began, and for the purpose of this suit, by a surveyor. From it it does clearly appear that the highway called Main Street, in front of the complainants’ land, is since the laying of the curb in question thirty-eight feet wide and not forty feet wide. If, as contended by the complainants, the legal width of Main Street be forty feet between curbs and the curb on the east side of the street is in its proper location, then the new curb on the west side of the street must be in a wrong place. But the allegations of the complainants and defendants on this subject of the exact location of Main Street and its boundaries are conflicting and irreconcilable. Nor does it appear from the plot of the defendants whether the error in the location is on the east or west side of the street. It is alleged by the defendants, and taken to be true, that the curb in front of the complainants’ land is a continuance of the same course of the long existing curb to the west of that land. That tends to show that the curb in question was rightly located. Inasmuch, then, as the facts as established in the case do not clearly show that the curb in front of the complainants’ land was located in the wrong place, that is, about two feet too far to the east, it is not at this time right to express any opinion as to the effect of such error in location, if such should hereafter be shown to exist.

The defendants urge as a complete defense to the claim of

“When the improvement is of a public street upon which the owner’s property abuts, before the duty to speak can be said to exist, which is so imperative that if he keeps silent then, he shall not afterwards be heard, it must be shown,

“First. That he knew the improvement was being made. * * *

“Second. That he had knowledge that the public authorities intended, and were making the improvement upon the faith, that the cost thereof was to be paid by the abutting property owners, and that an assessment for that purpose was contemplated. * * * Because cities may improve the streets out of the general fund and without a special assessment.

“Third. That he knew of the infirmity or defect in the proceedings, under which the improvement was being made, which would render such assessment invalid and which he is to be estopped from asserting. * * *

“Fourth. Some special benefit must have accrued to the owner's property, distinct from the benefits enj oyed by the citizens generally. ’ ’

The case is now heard under a rule of court which allows a complainant to move for a decree notwithstanding an answer, the practical effect of which is to test the sufficiency of the answer as a defense in point of law. But in his discretion the Chancellor may decline to decide the questions raised by the motion and direct the case to proceed. This course will be pursued as to the lien for the cost of the curb and gutter. But inasmuch as the defendant had a right to sell so much of the personal property, levied on as was necessary to pay the cost of laying the pavement, the preliminary injunction heretofore awarded the complainants should not' be continued pending the final hearing, unless the complainants pay to the defendant the cost of the pavement, or else the preliminary injunction be amended, so as to apply only to a sale of property to collect the cost of the curb and gutter.

If desired, the parties will be heard as to the form of the order to be entered in accordance with this opinion.

Note. Upon full hearing the matters of fact upon which the foregoing opinion was based were all established by evidence, which failed to reveal the correct location of the curb and gutter, and the bill of complaint .was dismissed. On appeal the decree of the Chancellor was sustained, the opinion of the Supreme Court appearing, post p. 00.