
    Sparks v. City of Jackson.
    [79 South. 67,
    Division B.]
    1. Municipal Corpobations. Street paving. Notice to owner to elect.
    
    In a suit by a city for the cost of street paving, against an abutting owner, where there was no evidence showing that such owner intended to pave at his own expense, he cannot complain that the notice requiring him to elect as to whether he would do the paving himself, or the city would do it at his expense, was for a shorter period than required by law.
    
      2. Evidence. Judicial notice. Benefit ’from street paving.
    
    The court cannot judicially know that abutting property will not be benefitted by paving the part of a street not occupied by a street railroad in front of such property.
    Appeal from the chancery court of Hinds county.
    Hon. O. B. Taylor, Chancellor.
    Suit by the city of Jackson against Thos. P. Sparks. From a decree for plaintiff, defendant appeals;
    The facts are fully stated in the opinion of the court.
    
      Green <& Green, for appellant.
    
      Wm. Hemingway, for appellee.
   Ethridge, J.,

delivered the opinion of the court.

The city of Jackson filed a bill in' the chancery court to enforce a lien upon certain property owned by the appellant in the city of Jackson on account of a special assessment assessed against said property for the purpose of paving North State street from Man-ship street to Euclid avenue. It is alleged in the bill that on the 6th day of June, 1911, the mayor and board of aldermen passed a resolution declaring the necessity for paving said street between Manship street and Euclid avenue, under sections 3411 and 3412 of the Code of 1906, and published a notice of intention to make such improvement to the property owners in the newspapers as required by the statute, and alleged that the majority of the resident owners on said street to be improved did not within twenty days protest in writing against such improvement; that on the first Monday in August, 1911, the board of mayor and aldermen passed an ordinance adopting plans and specifications for the construction of said improvement and established the grade of the street and provided that the street should be paved with creosoted wood blocks; that after the expiration of the twenty days in the notice the mayor and board of aldermen on the 1st day of August, 1911, ordered the street commissioner of said city to notify the property owners abutting said street to construct the pavement in front of their property for one-third of the distance of the width of the street in front of their property, at their expense; and that the street commissioner did give notice to the property owners as directed, and that none of the property owners constructed said improvement, and that the street commissioner, as provided in section 3412, Code of 1906', did proceed to construct the improvement, keeping an account of the costs thereof, and reported to the board on the 7th day of May, 1912', the cost of the improvement, fronting the appellant’s property, which amounted to two hundred and seventy-seven dollars and twenty cents, and the board declared a lien on the property involved in1 this litigation. It is alleged that the city thereby became entitled to a lien for the said amount against the said property and for a decree against the appellant for said sum. The ordinances óf the board were made exhibits to the bill. The city entered into contract with the Creosoted Wood Block Paving Company to pave the said street. Under the orders of the board the Jackson Railway & Light Company was ordered to pave that part of the street lying between the tracks of its railway and for two feet on either side thereof. On the 5th day of September, 1911, the city of Jackson entered into a contract with the Jackson' Railway & Light Company, in which contract, for a consideration, and certain agreements on the part of the Railway & Light Company, and the dismissal of certain suits instituted by the Jackson Railway & Light Company against the city whioh were compromised and Settled in the said contract and in consideration of the laying of additional tracks or lines by' the said Jackson Light & Railway Company, the city agreed to amend its specifications and ordinances as to the paving of North State street from Manship street to Enclid avenue, so as to provide for an unpaved grass plot or neutral ground of the street railway area as far as the paving shall extend, which' said area was to remain unpaved, the railway company agreeing to pave suitable crossings over its track and said neutral ground at convenient distances, about one block between each crossing.

At the October meeting, 1911, the board of mayor and aldermen passed an ordinance reciting that on the 11th day of July, 1911, the city of Jackson by an ordinance of that date duly entered on their minutes, which was caused to be published for three weeks in a newspaper in the city, which publication is adjudged to have been made, adjudging the necessity for the paving of the street in controversy here and reciting that a majority of the resident owners on North State street between Manship street and Euclid avenue have up to this time not filed their protest in writing against said improvement, and that no protest whatever had been filed at any time against such improvement, and that a majority of the resident property owners on said North State street between Man-ship street and Euclid avenue petitioned for the paving of said street, and that plans and specifications had been adopted at the August meeting providing for the paving with creosoted wood, and ■ that the street commissioner was directed to give notice to the owners of property or land abutting the said part of said street to be paved as required by the sections of the Code; : and that it further appeared that all of the said ordinances had been duly published, and that the street commissioner had reported to the board that the owners of such property did not malee the improvements within twenty days from date said ordinance became effective, and that he had given notice to the owners or occupants of each piece of property to be assessed, and the necessity therefor, and notified them to make said improvement according to the requirements of the ordinance of the board and the plans and specifications, and that he had completed giving these notices on- the 8th day of September, 1911, and thereupon the board of mayor and aldermen of the city of Jackson ordained that at the expiration of thirty days from the date of giving of notice to the owners or occupants of such property, unless said owners shall within said time make such improvements or cause them to he made, the street commissioner is directed and required to make repairs and construct improvements, except as to the street railway area which has been eliminated, keeping account of the costs thereof, and report the same to the board at its next regular meeting after the completion of said work for assessment as provided in said ordinance and section 3412 of the Code. It appears that the report of the street commissioner was made at the May meeting of the board of mayor and alderman in 1912., This suit was filed February 27, 1917.

The appellant demurred to the bill of the city on the ground that there is no equity on the face of the bill; second, that the bill fails to show that there was any conclusion by the city of the alleged special improvements in accordance with the plans and specifications adopted, and as to which the defendant was given an opportunity to protest, and as to which no requisite notice is averred to have been given; third, that the defendant was and is anxious to have said Forth State street paved in accordance with the plans published and adopted whereby and whereunder the street was to be paved from curb to curb, but that the city unlawfully had not paved or caused to be paved the street from curb to curb, but that two* strips had been paved down each side, whereas the middle is wholly unpaved; fourth, that-the plaintiff fails to show any compliance to the ordinance on the subject; fifth, that the plaintiff fails to show any specific. ordinance relative to the paving of said street whereby the material was adopted, and, as to this, said defendant was given the right to protest; sixth, there is no allegation that this respondent ever failed to pave a strip, and was legally called on so to do; seventh, the paving is not averred to be of quality contracted for. This demurrer was overruled by the chancellor, and appeal granted therefrom to the supreme court before the defendant was required to answer. The granting of the appeal does not recite that the chancellor thought it was necessary for an appeal to be granted for the purposes of settling the principles of the case for the guidance of the chancellor, but was given evidently for the purpose' of enabling the defendant to get the judgment of this court upon the sufficiency of the bill before he was required to answer.

We think the principles underlying this case have already been settled in former adjudications of this court. We fail to see wherein the rights of the defendant were affected by the contract made between the city and street car company. The defendant was required to pave at.his own expense one-third of the street in front of his property, or in default thereof that the city would pave this at his expense. In the original ordinance the street car company was to pave the street along its tracks, and it would not affect the defendant’s liábility at all as he was not to pave that part of the street occupied by the railway company. The ordinance was amended September '5, 1911, excepting the street railway company from paving that part of the street occupied by its lines, but providing that the railway company should have a grass plot on its part of the street with suitable crossings at distances of one block apart. After this ordinance was published the appellant failed wholly to protest, and the record does not show that he ever protested against the amended plans and specifications, though the, record shows that he was served with notice that if he did not pave the same within thirty days that the city would pave it and charge him with the expense. He contends that the notice was served upon him before the full time that he he was allowed under the law to elect in which to make the improvement but the record does not show that he intended to make such improvement' at his own expense or that he was precluded from so doing by any act of the city. If the notice served upon him required him to do the improvement in a. shorter time than the law contemplated he should have, he could doubtless have gotten the proper extension by applying to the city therefor. So far as this record shows, he made no effort to make the improvements, nor did he make any protest against the work being done within the time that the statute would have given him to have made his election. We fail to see how he was damaged, or what right of his was infringed on the allegations of the bill. If any facts exist which give him any right to refuse to pay for this work they must be properly pleaded. We cannot judicially know things we are assumed to know in the brief and we cannot judicially know that the paving as ordered under the amended ordinance would not be a benefit to- his property. It does appear that the street was paved with the exception of the portion occupied by the railway company, and, so far as the record shows, this paving might be as beneficial and satisfactory as th’e original would have been.

The decree of the chancellor will be affirmed, and the cause. remanded for further proceedings.

Affirmed and remanded.  