City of Bay St. Louis v. Cumberland Telephone & Telegraph Co.

Ethridge, J.,

delivered the opinion of the court.

The city of Bay St. Louis adopted an amendment to its charter authorizing it to construct a sea wall. In section 2 of this charter amendment it is provided that, if the city undertake to construct a sea wall, it should refer the matter to the bond commission of the city, and that the bond commission shall employ a competent civil engineer to make an examination of the lines of the proposed sea wall, and to prepare detail plans and specifications, accompanied by a blueprint showing the location of the sea wall, and the character of the material to be used, and the height above and the depths below sea level, etc., and that such report should be filed with the city. Section 3 of this charter amendment provides that, when the plans and specifications and estimates have been filed for public inspection and received by the board of mayor and aldermen, notice shall be.given by two weeks’ publication in a newspaper published in the city of such filing, and the time and place where said plans, specifications, and estimates may be inspected by all property owners affected. Said notice shall be directed to property owners as appears from said map, plats, etc., and set out the property to be protected by the proposed sea wall, as shown by said plans, describing said property, by lot numbers or districts or boundaries or other descriptions, in as large an area as possible. The notice shall give the time and place of the meeting of the board of mayor and aider-men for the hearing of objections, if any, to the kind, character, necessity, or location of said proposed sea .wall. After the hearing of objections, if any, the board of mayor and aldermen shall reject, amend, or adopt the plans and specifications and estimates, and from such finding any one aggrieved may take a bill of exceptions and appeal to the circuit court as provided for by the general law of the state. It is further provided that, after such hearing and adoption, the 'bond commission of the city shall make an assessment of the benefits against the property specially benefited, and provides for the plan of assessment.

The case was tried on an agreed statement of facts, from which it appears that the property of the Cumberland Telephone & Telegraph Company, at the time of the adoption of the plans and specifications, lay partly within the district and partly without the district, and that subsequently the poles which lay outside of the district were moved inside of the district. The Cumberland Telephone & Telegraph Company was assessed by the city authorities upon its pole lines, consisting of poles, arms, and wires, constituting its physical equipment. There was no specific naming of the. Cumberland Telephone & Telegraph Company in the publication made under the city charter amendment above referred to, giving notice of the plans and specifications, etc., but such notice was published, giving a general description of the property embraced in the sea wall district by proper descriptions.' The Cumberland Telephone & Telegraph Company was later assessed for the special benefit, and due notice given to it of such assessment, and said company appeared and protested against this assessment on the ground that its property was not such property as was assessable or subject to assessment for benefits, and, second, because it was -not given specific notice that its line would be assessed for benefits by the published notice. It is contended that the Cumberland Telephone & Telegraph Company should have been specifically named as a party to be benefited by the construction of the sea wall, or that its pole lines should have been specifically mentioned in such way as to give specific notice that it would be benefited. It is contended that the pole lines are not real estate or land and therefore not subject to such assessment. The judgment of the court below was in accordance with the contentions of the Cumberland Telephone & Telegraph Company, and judgment was entered denying the assessment.

We do not think the charter amendment called for the original maps, plans, and specifications to show the names of the individuals who owned the property. The description of the property would be a sufficient notice to the owner under this section for notice of the adoption of the plans and specifications, and the owner could inspect the plans and specifications and maps and tell whether its property was within the sea wall district, ' and, if such property owner opposed the plan, he would have the right to appear and protest against the adoption of the sea wall district improvement. There is no question of the second notice being sufficient and whether the property would be specially 'benefited or not would be determined on this hearing. In our opinion the pole lines of the Cumberland Telephone & Telegraph Company are properly subject to be assessed for benefits. The poles are planted in the real estate or land, and constitute a part of the real estate, being permanent fixtures, and the company having a right in the land as such to support its poles and guy wires, stays, etc., constituting its physical equipment.

We are therefore of the opinion that the judgment of the court below was erroneous, and the judgment will be reversed, and the cause remanded.

Reversed and rema/nded.