CITY OF DALLAS et al. v. ATKINS et al., 223 S.W. 170

GREENWOOD, J. Defendants in error obtained a temporary injunction restraining plaintiffs in error, the city of Dallas and certain of its officers, from enforcing an ordinance under which the city sought to condemn certain property for the purpose of widening a street and to assess the cost of the work against property especially benefited and the owners thereof. The order granting the temporary injunction was affirmed by the Court of Civil Appeals in an opinion containing a full statement of the case, reported in 197 S. W. at page 593.

The principal assignments here complain that the Court of Civil Appeals erred in holding that the special assessments to cover the cost of the improvement could not be lawfully levied against the residence homesteads of defendants in error, and in holding that under the city’s charter such cost could not be made a personal charge against defendants in error as the owners of property specially benefited. In

section 5 of

article 11 of the charter of the city of Dallas, it is provided that— “In case of condemnation of land for the * * * widening of any street * * * within the corporate limits of the said city, the board of commissioners may, by ordinance, provide that the cost of such property shall be paid for by the property owners owning property in the immediate vicinity thereof and benefited thereby.” It is not questioned that the charter provides for assessments against benefited property.

In view of the above-quoted language we think the Court of Civil Appeals erred in holding that there was no authority conferred. by the charter on the city to impose a personal liability on the owners of benefited property for the cost of widening a street. The charter conferring the requisite power, the owner would be personally liable to pay an assessment duly made to meet the cost of the improvement of the street, though the property was used as a residence homestead. Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666.

In the case cited the court, in answer to a certified question, said: “If the terms of the charter of the city of Houston empowered that city to make the cost of such improvement a personal charge against the owners of the property, and if the city has done so, then the appellees would be liable for the cost of the improvement so made, although it cannot be enforced against their homestead.” 90 Tex. 294, 38 S. W. 159, 35 L. R. A. 666. The answer was modified, on rehearing, so as to limit the personal liability to that one of the appellees who was the owner of the homestead. 90 Tex. 295, 38 S. W. 154, 35 L. R.

A. 666. The Court of Civil Appeals did not err, but instead followed the settled law, in holding that the Constitution forbade the creation of any lien on homestead property for the cost of the street improvement in question. Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770; Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666.

The court’s conclusion that personal liability could not be imposed, under the provisions of the charter, on the owner of benefited land, for the cost of street improvements, where such land belonged to the separate estate of a married woman, is contrary to the opinion of this court filed to-day in the case of Noa Spears et ux. v. City of San Antonio, 223 S. W. 166, where the question is fully discussed. Neither the status of the owner as a married woman nor the fact that the land was exempt as a homestead would prevent the imposition of personal liability on the owner.

The real foundation of the personal liability is that the owner is more than compensated for what he is required to pay on the cost of the improvement by the enhancement in value of his property. The enhancement occurs as truly where the property is homestead, or where the owner is a married woman, as under any other conditions.

The charter authorizes proceedings to assess the cost of street improvements against benefited property and its owners “if the amount of such compensation shall not be agreed upon.” In our opinion, under a reasonable construction of the quoted language of the charter, nothing further is required than that there shall have been no agreement between the city and the property owners as a condition precedent to the authorized steps to assess and collect the cost of the improvement. Hence it was unnecessary to plead and prove that the city made efforts to secure agreements before proceeding under the charter.

Where several persons jointly own property, and an assessment is made against them as such owners to meet part of the cost of a street improvement, it is essential to separate the amount of the liability of each owner. City of Paris v. Tucker, 101 Tex. 99, 104 S. W. 1046. Since the injunction appealed from was authorized, in so far as it enjoined the attempted enforcement of liens on homesteads, and in so far as it enjoined the collection of assessments against joint owners without apportionment between them, it is plain that plaintiffs in error are not entitled to have same entirely vacated.

By their assignments, propositions, and statements plaintiffs in error have sought only a complete reversal of the judgment, and have furnished the court no basis for a reform of the injunction. Plaintiffs in error having failed to show that the temporary injunction should be vacated as to any certain parties, or as affecting any certain properties, it will not be disturbed, but the judgments of the district court and of the Court of Civil Appeals will be affirmed. ©sjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes