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CARTER et al. v. CITY OF TOCCOA; and vice versa.
Bond validation. Before Judge Frankum. Stephens Superior Court. July 25, 1953.
WORRILL, Justice.
Where a city filed a petition seeking a judgment validating proceedings for street improvements, based upon the act of 1927 (Ga. L. 1927, p. 321 as amended; Code 69-401 et seq.), and where no objection to the assessment or prior proceeding had been made by the property owners as provided in the act, they, in fact knowing of the proposed improvement, could not stand by and see the work of paving completed, and acquire the benefits thereof, and then come into equity asking that the assessment be declared null and that the court decree title to a strip of the land to be in them, without doing or offering to do equity.
The City of Toccoa filed a petition in Stephens Superior Court seeking a judgment validating proceedings for the improvement of designated streets, based upon the act of 1927 (Ga. L. 1927, p. 321 as amended; Code 69-401 et seq.), relating to street improvements in municipalities of 600 or more population. S. B. Carter, Jr., and others filed an answer in the nature of a cross-petition, which as amended averred that so-called Railroad Street, one of the streets the city proposed to pave, is not a public street, but on the contrary consists partly of the Southern Railway Company right-of-way, and includes a 10-foot strip of protestants' property abutting on the south side of the railroad right-of-way; also that the act of 1927, supra, is violative of stated provisions of the Constitution of Georgia. Protestants prayed that the purported assessment be declared void and that title to the 10-foot strip of their alleged land be decreed to be in them free from any claim of lien of the city. The municipal authorities filed an answer to the cross-petition, and also filed a motion to dismiss, because the protestants failed to file their suit within 30 days after the passage of an ordinance making the assessment final.
On the trial it was stipulated among other things: That the trial judge should pass upon all issues of fact and law without the intervention of a jury. Protestants take issue on the subject of the notice. They do not dispute publication of notice of the ordinance. They admit it was properly advertised and also admit passage of the ordinance of February 17, 1948, deeming it necessary and to the best interest of the public generally to improve designated streets including Railroad Street, and publication of the notice of the ordinance; also passage of the resolution of May 10, 1948, authorizing the municipal authorities to proceed with the improvement. It was further stipulated that the assessment against the Southern Railway Company for its proportionate share of paving South Railroad Street has been paid by the Southern Railway Company.
The following correspondence was introduced in evidence. On March 15, 1948, Mrs. S. B. Carter, one of the protestants, wrote the city "in protest of the proposed paving project" over and along Railroad Street, as advertised. On October 28, 1948, the city gave S. B. Carter estate written notice of the passage of a resolution making the assessment final. On the same date counsel for protestants wrote the city manager: "It is the contention of Mrs. Carter, representing the estate, that the entire street, together with property joining on the south side, is property belonging to the Southern Railway Company and the estate is not liable for this assessment." On January 27, 1949, the city manager wrote S. B. Carter estate and Mrs. S. B. Carter that the paving abutting on their property had been completed. On January 29, 1949, the protestants wrote the city manager: "We protest any assessment against this property and at the proper time and place will file our protest to its inclusion in any lien for paving purposes. The area that has been paved is not the property of the city and is neither a public street nor a public alley and we have not authorized its paving and therefore refuse to pay any assessment either by installments or otherwise. This is intended as an official protest against the inclusion of this property in any assessment roll or other attempt to create a lien thereon."
There was conflicting evidence on the question as to whether or not a street had existed along the railroad right-of-way for some forty years.
After hearing evidence the trial judge overruled the motion to dismiss the protestants' answer in the nature of a cross-petition, to which ruling the city filed exceptions pendente lite, and the court then made designated findings of fact and entered a decree validating all the proceedings leading up to and including the assessing ordinances set out in the city's petition, and declaring the assessments and liens therein described to be valid and binding obligations against abutting property.
The protestants filed a motion for new trial on the general grounds, which was overruled, and they excepted. The municipal authorities filed a cross-bill of exceptions assigning error on the portion of the judgment overruling their motion to dismiss the answer in the nature of a cross-petition.
A controlling question is whether the protestants were estopped, by failing to make any proper objections until after completion of the paving, to complain of the judgment validating the proceedings for improvement of South Railroad Street. It is strongly insisted that the notice required under the act of 1927, supra, was ineffective as to them because it was addressed to S. B. Carter estate, whereas his widow and sons were the owners under his will, and further that the act of 1927 does not apply to them for the reason that a portion of the paving encroaches upon their property.
The protestants allege that their property abuts on the right-of-way of the railroad company; and, since it appears that the railroad company had paid its proportionate part of the paving assessment over and along its right-of-way, the contention that protestants are not liable to pay any amount whatsoever is untenable. The uncontroverted evidence shows that the protestants had actual notice of the paving. Nevertheless they did not, within 15 days after the last day of publication of the resolution declaring it necessary to improve the street, file any protest with the city clerk as provided in Code 69-403. Nor did they, within 30 days after passage of the ordinance making such assessment final, commence a suit contesting the validity of the assessment as authorized under Code 69-424. Then, in lieu of offering any proper objection in the meantime, they waited until the city proceeded to validate a lien against the abutting property, as provided in Code 69-428 et seq., before they filed their answer in the nature of a cross-petition, which contained a prayer that the purported assessment be declared void and that title to the 10-foot strip of their alleged land be decreed to be in them free from any claim of lien of the city.
In City of LaGrange v. Frosolona, 52 Ga. App. 232 (183 S. E. 99), involving an affidavit of illegality interposed to an execution levied on abutting realty for an unpaid paving assessment, it was said in the opinion (at p. 233): "There is no question that there was a legal levy entered on the execution. If, as recited therein, the paving was done pursuant to the act of August 25, 1927 (Acts 1927, pp. 321 et seq.), and the necessary resolutions and ordinances were adopted and passed by the city, the execution appeared 'fair on its face.' Where no objection to the assessment or prior proceedings was made by the property owner as provided in the act, and where no action was filed to enjoin the assessment or the improvement within thirty days after the passage of the ordinance making such assessment final, the property owner will be presumed to have accepted the terms thereof and to have agreed that the assessment provided for in the act may be made. Code of 1933, 69-408, 412, 424; Fowler v. Milledgeville, 47 Ga. App. 585, 588 (170 S. E. 819); Montgomery v. Atlanta, 162 Ga. 534 (134 S. E. 152, 47 A.L.R. 233)." See also Holt v. Parsons, 118 Ga. 895, 899 (45 S. E. 690).
Huff, 60 Ga. 221 (3); Raines v. Clay, 161 Ga. 574 (131 S. E. 499); City of Waycross v. Cowart, 164 Ga. 721 (3) (139 S. E. 521); Cochran v. City of Thomasville, 167 Ga. 579 (3) (146 S. E. 462); Bass v. Mayor &c. of Milledgeville, 180 Ga. 156, 163 (178 S. E. 529); Wall v. Mayor &c. of Milledgeville, 197 Ga. 165 (1) (28 S. E. 2d 131); Harp v. Mayor &c. of Forsyth, 208 Ga. 842, 845 (69 S. E. 2d 750).
Applying the foregoing principle to the pleadings and evidence in the present case, the trial judge did not err, as complained of in the main bill of exceptions, in rendering the judgment validating the proceedings for street improvement. Under this ruling it is unnecessary to decide upon the constitutionality of the act of 1927, supra, or to pass upon the assignments of error in the cross-bill of exceptions.
Judgment affirmed on the main bill of exceptions. Cross-bill of exceptions dismissed. All the Justices concur, except Duckworth, C. J., not participating.
McClure & Ramsay, contra.
Frank C. Gross, Geo. L. Goode, Carter Goode, Gross & Smith, Ellis M. Creel, for plaintiffs in error.
Saturday May 23 04:03 EDT

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