City of Vicksburg v. Robinson

Ethridge, J.,

delivered tlie opinion of tlie court.

B.- J. Robinson filed a bill in tbe chancery court of Warren county against tbe city of Vicksburg and A. Kiersky, tax collector, alleging that complainant was tbe owner of a certain lot in said city, and that said lot fronts, or abuts, on tbe west side of Mulberry street in said city; and that tbe mayor and board of aldermen of the city of Vicksburg paved said Mulberry street, and in so doing changed tbe grade of said street; that thereafter the city gave notice to the complainant to. construct a sidewalk fronting his property along said street from concrete composed of material specified in a notice given the complainant; that article 14 of the charter of Vicksburg, being a special charter, conferred power on the board of mayor and aldermen to provide for the building, renewing, or repair of all sidewalks and gutters with “stone, brick, or wood,” and alleging that concrete was neither of these materials, and the city had no power to order a walk built of concrete. It was also alleged: That the charter provided, in- the conclusion of the section referred to, that:

“Before any person shall be required to lay a new sidewalk the city shall first establish proper grades of such work” and the complainant contends that the city had not established said grade for the laying of said sidewalk in front of his property, either by reducing the street to an actual grade level, or by order entered on the minutes of- the board of mayor and aldermen fixing each grade. That the city gave complainant notice to construct said sidewalk and to fill in and raise the street at his own expense up to the level of the paved street, referred to. The complainant failed to comply with the notice and to construct said sidewalk, and to fill in to the required height of the road, and the city proceeded on its own account to raise the said street' by filling in to a depth of three or four feet in front of the complainant’s property and laying a sidewalk thereon, and then proceeded under its ordinance to advertise the complainant’s property to pay for said work. The bill also alleges that when the work was being done by the city the complainant asked that it be deferred until he could build a new building' on his property so as to put down a brick wall for the support of said sidewalk, and that he gave notice that the wooden wall was insufficient for that purpose, and would cause the walk to settle and crack and otherwise become out of repair. The bill alleges that, unless restrained, the city would proceed to sell his property to pay for the said expense for which complainant averred he was not liable. The city answered, admitting that it ordered said sidewalk built, and admitted that the surface of said street in front of complainant’s property was raised in some places about three feet and admitted that it derived the power to do so from the city charter as alleged in the bill, and admitted serving notice on the complainant as shown in the exhibit to the bill. It admits that under the charter, before any person shall be required to lay a new sidewalk, the city shall first establish the proper grade for such work, but denied that the city had never' established the proper grade for the construction for said sidewalk, and alleged that the complainant bad full knowledge of the establishment of said grade. It admits that the board of mayor and aldermen of the city of Vicksburg did not have power under its charter as it then existed to compel property owners to construct a sidewalk of any material that its caprice or whim might determine, but denied that it was limited to the materials of stone, brick, or wood, and alleged’.that the concrete named in the specifications to be used in the construction of the sidewalk in question was in fact stone, and better than brick or wood, and aver that the complainant failed and refused to pay for the building of the sidewalk, and made' its answer a cross-bill, and asked fór judgment for the cost of the work, ninety-eight dollars and twenty-five cents damages and twenty-seven dollars and twenty-five cents for cost of advertising the sale of the lot, etc., amounting to one hundred twenty-five dollars and fifty cents altogether. The city admitted on the trial that it had never established the grade by any order entered on the minutes of the board of mayor and aldermen, and also admitted that it had not filled. in nor brought the street on which the sidewalk was to be laid to the grade level claimed until it itself proceeded to construct the sidewalk. The city contends that, it had the right to compel the owner to construct a sidewalk and make the proper fills at his own expense, and that the notice given the complainant required this to be done within twenty days after the service of the notice, or that in lieu thereof the complainant might permit the mayor and board of aider-men to construct it and pay one-fifth of the cost in cash and balance to be paid in one, two, three, and four notes, with interest at eight per cent., provided complainant would execute promissory notes and deliver to the city treasurer for the use of the city of Vicksburg. The chancellor made the injunction perpetual and dismissed the cross-bill from which judgment the city appeals.

■ The questions presented for decision are: First, as to whether concrete was in fact stone within the meaning of the charter provision existing at the time the notice was served upon the' complainant; second, whether the city could require the complainant to fill in or grade down his lot at the expense of the private property owners as a part of the construction of the sidewalks; third, whether or not the grade of the sidewalk must be reduced to writing and entered upon the minutes of the board of mayor and aldermen.

We think that concrete made in accordance with the specifications shown in this record, being composed of gravel, Portland cement, and sand, when laid and dried and hardened become equal in hardness and durability to natural stone, and may properly be classed as stone within the meaning of the original charter amendment.

Under the second proposition we are of the opinion that the charter does not confer upon the mayor and aldermen the power to require grading down of lots or the filling in of low places by the property owner at his own expense, but that this work must be clone by the city so as to have the level of the street or sidewalk the same grade practically that the walk must be built upon.

In the case of the City of Little Rock v. Edward FitzGerald, 59 Ark. 494, 28 S. W. 32, 28 L. R. A. 496, the supreme court of Arkansas held that the power to require the laying and construction of sidewalks at the expense of the property owner did not require the landowners to cut down and fill in lots at their own expense. The.act in question there under consideration provided that, in order to better provide for the welfare, comfort, and convenience of the inhabitants, power was conferred on the city to regulate the use of sidewalks and all structures and excavations thereunder, and to require the owner or occupant of any premises to keep the sidewalks in front or alongside the same free from obstruction, and to build and maintain a suitable pavement or sidewalk improvements whenever the same may become necessary to the safety or convenience of travel, and to designate the kind of sidewalk improvement to be made and kind of material to be used by the owner or occupant and the time within which the improvement is to be completed, etc. The court held that this general power to require the property owner to construct and maintain sidewalks did not carry with it the power to require him to do the filling in and grading'to bring the walk to the proper level of the street. Many authorities are cited in this case, and the monograph note appended to the L. R. A. report shows that this doctrine prevails generally, citing many cases. In our view this construction is sound. If the property owner can be required at all to cut down a lot and fill in depressions for the building of a sidewalk, the authority must be specifically conferred, and must not be implied as an incident to' a general power. In the present case there was no opportunity for the complainant to build the sidewalk after the necessary fill had been made. The city had not brought the sidewalk to the proper grade levels, and the individual had no opportunity for building the walk after the city had made the necessary fill. The notice called upon him to do this work of filling in the depression himself, and the city cannot now say, after the injunction has been sued out, that it had not included this expense in its bill of costs charged against the complainant. It being true that there was no actual bringing of the street to grade level by the city prior to the giving of the notice, and it being admitted that no grade had been established by order entered on the minutes, it is unnecessary to decide in this suit whether an order establishing the grade must he made and entered on the minutes of the board where the city has brought the grade up to the level itself, and we think it a wise rule to refrain from deciding this proposition until it becomes necessary to do so. It would appear that the safer rule is for a city to enter its established grades on'its minutes, so there' could he no question about what the grade of the street was. It follows from what we have said that the chancellor was right, and the judgment is affirmed.

Affirmed.