Atlantic Coast Line Railroad v. Town of Ahoskie , 192 N.C. 258 ( 1926 )

Brouden, J.

This appeal involves the validity of an assessment against the property of the plaintiff railroad by the defendant town. The plaintiff asserts that the assessment is illegal because it is the owner of the larger portion of the property between Main and First streets, and the town has not acquired title thereto. The town contends that the question of ownership cannot be determined in an appeal from the confirmation of the assessment under C. S., 2714, but that the plaintiff must resort to an independent action for the value of the property so taken.

Two propositions of law are involved in this ease:

1. Is the assessment valid?

2. Can the validity of the assessment be challenged in an appeal from the confirmation thereof, as provided by C. S., 2714?

An assessment “as distinguished from other kinds of taxation, are those special and local impositions upon the property in the immediate vicinity of municipal improvements which are necessary to pay for the improvement, and are laid witb reference to the special benefit wbicb tbe property is supposed to bave derived therefrom.” (Black’s Law Dictionary) ; Raleigh v. Peace, 110 N. C., 32.

It is a creature of the statute and its validity must flow from the statute which authorizes it. Raleigh v. Peace, 110 N. C., 32; Greensboro v. McAdoo, 112 N. C., 361; Morganton v. Avery, 179 N. C., 551.

So that, in order to determine the validity of an assessment, it is necessary to examine the statute under which it is laid. The underlying theory upon which a valid assessment is based is that a local improvement has been made by a municipality, and that the property of all abutting owners derives a benefit therefrom, for which they should be compelled to pay. The assessment in this case is laid for the improvement of an alleged street called Railroad Street. Our statute, C. S., 2703, defines a street improvement as follows: “Street improvement includes the grading, regrading, paving, repaving, macadamizing and re-macadamizing of public streets and alleys, etc.”

The petition, which is the jurisdictional foundation of the improvement, under the statute, must be signed “by a majority in number of the owners who must represent at least a majority of all the lineal feet or frontage of the lands . . . abutting upon the street or streets, or part of a street or streets proposed to be improved.” The next stage of the proceeding is the resolution by the governing authority of a municipality “which shall designate by general description the report to be made and the street or streets or part or parts thereof where the work is to'be effected, etc.”

Therefore, under our statute, one of the essential requisites of a-valid assessment is the existence of a public street or alley.

It is admitted that all of the requisites of a valid assessment appear except the one requiring the existence or establishment of a public street. The defendant contends that the property improved was a public street, and the plaintiff contends to the contrary. This was a fact to be established by evidence. An assessment, under the express language of our statute, implies the existence of a public street. If no public street existed, then no assessment can be legally laid upon abutting owners.

The second question involves the consideration of whether or not the disputed fact as to the existence of a public street can be tried on appeal from the confirmation of the assessment in accordance with C. S., 2714.

In determining this question the defendant town relies upon the cases of Hunerberg v. Village of Hyde Park, 22 N. E., p. 486; Holmes v. Village of Hyde Park, 13 N. E., 540; and Village of Hyde Park v. Borden, 94 Ill., 26. The principle of law involved in these cases is thus stated in the Hunerberg case: “That which we have already said is a sufficient justification of the ruling of the county court in excluding the evidence offered for tbe purpose of showing that appellant was the owner of the legal title to the east 33 feet of the lot covered by the street to be improved. But, besides this, there is no provision made in the statute to try titles to land in these proceedings to assess benefits upon property to pay for public improvements, nor is the county court vested with jurisdiction to try and determine the question of title to real estate. If, as is claimed by appellant, he is the owner in fee of the 33 feet of land, and is in the possession of the same, then such private property of his cannot be taken for public use without he first receives just compensation therefor, etc.”

The reasoning in these cases does not apply to the case now under consideration for the following reasons:

1. In the Hunerberg case there was no contention that a street did not exist, but that plaintiff was the owner of a strip of land on the western boundary of the street of 33 feet; or, in other words, the plaintiff owned-an encroachment upon the street sought to be improved.

2. An assessment is a creature of statute, and the Illinois statute is fundamentally different from the North. Carolina statute.

It appears from the case of Leman v. City of Lake View, 23 N. E., p. 346, relied upon by the defendant, that the Illinois statute provided that when an ordinance was passed for making any local improvement and it appeared that private property was necessary for making the improve-mfent, that a petition should be filed in some court of record of the county in which the property was situated, praying that steps be taken to ascertain the just compensation to be made for the private property so taken or damaged in making the improvement. Revised Statutes, Ill., Hurd., ch. 24, sec. 13.

The case of Davis v. City of Silverton, 82 Pac., 16, and Hockfield v. Portland, 142 Pac., 824, are both relied upon by the defendant. In the Davis case it was admitted that the plaintiff’s land abutted on First Street; and also in the Hockfield case it was alleged and seems to have been admitted that East Oak Street, which was the street in controversy, was a public street of the city.

Under our statutes upon the subject an aggrieved party is given the right of appeal to the Superior Court, and the ease is to be tried upon the statement of facts provided for in the statute.

In the case of Brown v. Hillsboro, 185 N. C., 376, it was held: “If the plaintiff desires to attack an assessment when levied against his property, the statute gives him remedy. C. S., 2714.” And to the same effect is Leak v. Wadesboro, 186 N. C., 689, holding that “other sections provide for ascertaining the amount of and levying assessments, with the right of appeal to the Superior Court in case of dissatisfaction by any person against whom an assessment is made under section 2714.”

In Gunter v. Sanford, 186 N. C., 452, it is beld that “the statutes afford plaintiffs adequate means for litigating matters in controversy-before the board of aldermen, and, if desired, by appeal from their decision to the Superior Court.” Anderson v. Albemarle, 182 N. C., 434; Tarboro v. Forbes, 185 N. C., 59; Long v. Rockingham, 187 N. C., 199; Holton v. Mocksville, 189 N. C., 144.

In the Anderson case, supra, it was held that “in the absence of any showing to the contrary, assessments are presumed valid, and he who attacks their validity has the burden of establishing by competent evidence the contrary.”

The conclusion of the whole matter, therefore, is whether or not this assessment was valid. If Bailroad Street is a public street of the town of Ahoskie, then the town had the right to make a valid assessment against abutting owners. If it is not a public street, then no assessment under our statute could be properly made. This is a question of fact to be determined and established by competent evidence, and, certainly, the validity of the assessment under our statutes can be challenged in the assessment proceedings. Hence, the judgment dismissing the appeal and exceptions of the plaintiff was erroneous.

' Beversed.