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unreasonably delayed in enforcing as- Rhode Island Mortg. & T. Co. v. Spoksessments, it was liable generally. It ane (1898) 19 Wash. 616, 53 Pac. 1104, was stated in the opinion in this case holding that the complaint stated no that the Statute of Limitations had cause of action against the city, alrun as to some of the property in this though it expressly averred that the case.

city had exhausted its power and auAnd in Bank of British Columbia v. thority to make and levy any local or Port Townsend (1897) 16 Wash. 450, special assessment to create a fund 47 Pac. 896, the failure of the city to from assessments as provided by the provide the fund out of a special as- contract. sessment, until the bar of the Statute And the liability of a municipality of Limitations had intervened, was which had neglected to enforce asheld to render it liable to the warrant sessments was also denied in Northholders.

western Lumber Co. v. Aberdeen So, in Philadelphia Mortg. & T. Co. (1898) 20 Wash. 102, 54 Pac. 935, and v. New Whatcomb (1898) 19 Wash. State ex rel. American Freehold-Land 225, 52 Pac. 1063, a municipality was Mortg. Co. v. Tanner (1907) 45 Wash. held liable for interest where the orig- 348, 88 Pac. 321. But in neither of inal assessment was void, and the re- these cases does it expressly appear assessment failed to include interest, that it was no longer possible to enbut one reassessment being permitted. force them.

In German-American Sav. Bank v. There is a dictum to the same effect Spokane (1897) 17 Wash. 315, 38 in State ex rel. Security Sav. Soc. v. L.R.A. 259, 49 Pac. 542, however, it Moss (1906) 44 Wash. 91, 86 Pac. 1129. was stated in the McEwan Case The mere fact that one local assessthe right to recover was based on the ment was defective, when there exists ground of delay alone, and was there power in the city to levy a new one, sustained as to all of the warrants, will not make the city generally liaregardless of the question as to lim- ble, where it is proceeding with due itation. To this extent the McEwan diligence to make a new levy. StephCase was expressly overruled, but its ens v. Spokane (1896) 14 Wash. 298, authority for the position that the city 44 Pac. 541, 45 Pac, 31. The court held will be responsible if it is no longer that as long as it was within the powpossible to enforce the tax against the ers of the city officers, moved by themproperty does not seem to have been selves or by interested parties, to colimpaired, until the decision in Wilson lect the special fund that must be the v. Aberdeen (1898) 19 Wash. 89, 52 source of payment, and that it was Pac. 524, holding that the city was only when the negligence of the city not generally liable, although it was had placed it out of its power to colconceded by both sides that the rem- lect the special fund, that such negliedy under the assessment proceedings gence would open its general liability was lost. The court apparently re- to warrant holders. pudiated the attempt to distinguish The decision in Stephens v. Spokane the Spokane Case on the ground that (1895) 11 Wash. 41, 39 Pac. 266, apthe remedy under the special proceed- parently holding that the mere delay ings was still available in that case; of the city in taking steps to collect a and said that the obligation rested up- fund by assessment upon the abutting on the warrant holders to compel the property renders it generally liable, officers of the city to proceed with the would seem to have been overruled by collection of the assessments, and the later Washington cases cited in a that, if they saw fit to allow their rem- preceding subdivision; at least, as edy to become lost through a failure applied to a case where there is an to compel an enforcement of the as- express provision exempting the city sessment proceedings, they, and not from liability in any event. the general taxpayers, must bear the Where the first assessment was inconsequences.

valid owing to a mistake in law, and The Wilson Case was followed in the city was proceeding to levy another, an action against it will not lie In New First Nat. Bank v. Weiser upon warrants payable out of the spe- (1916) 30 Idaho, 15, 166 Pac. 213, the cial fund, when the contract contains court said that it was not claimed that a clause waiving the right to demand the city authorities had failed or negand receive payment in any other way lected to make proper levies at the than from such warrants. The court proper time, or that its officers had was of the opinion that the city was not in proper season certified to the exonerated by such waiver, even if it tax collector the list of taxpayers was negligent. Thomas v. Olympia against whom tax levies had been (1895) 12 Wash. 465, 41 Pac. 191. made on account of the bonds, and

And in Soule v. Seattle (1893) 6 that, if all such assessments had not Wash. 315, 33 Pac. 384, rehearing in been paid, it was not the fault of the (1893) 6 Wash. 324, 33 Pac. 1080, the city, but of the delinquents; the city liability of the city was denied, where had no method of getting the money its delay in making a new assessment out of them except in a due and or. was due to honest doubt whether spe- dinary course of law; if the bond. cial authcity was required from the holder sees fit to proceed in the man. legislature, and the city was guilty of ner provided by statute, he can either no neglect, except as to the error in secure his money from the delinquent the first assessment.

taxpayer, or obtain title to the prop

erty of such delinquent free and clear e. Deficiency; assessments returned de

of all encumbrances. linquent; purchase of property by municipality.

Under the law the municipality has In Peake v. New Orleans (1891) 139

done its full duty when it perfects its U. S. 342, 35 L. ed. 131, 11 Sup. Ct.

tax title to property that was delin

quent and tenders the deed obtained Rep. 545, where the contract had been

to the contractor or holder of the entered into, not by the city, but by a board of commissioners created by the

local improvement bonds; and after it

has done this it is not liable for any legislature, such contract being for

of the delinquent instalments. Condraining certain lands only a part of which were within the city, it was

way v. Chicago (1908) 237 Ill. 128, 86

N. E. 619; Donahue V. La Grange held that the city was not liable for a

(1914) 263 III. 607, 105 N. E. 762 failure to collect part of the special

(affirming (1913) 183 Ill. App. 222). assessment, particularly where it ap

The municipality is not liable for peared that the delinquent property

deficiency upon the sale of delinquent would probably realize little, if any,

property. New Albany v. Sweeney more than the expenses of collection.

(1859) 13 Ind. 245 (charter proviIt was said by a divided court that

sions that the owners of lots should "when a contract for local improve

be liable to the contractor for the ments is entered into, the contractor

cost); Creighton v. Toledo (1868) 18 mụst look to the special assessments,

Ohio St. 447 (contractor agreed to reand to them alone, for his compensa

ceive a certified copy of the assesstion, and, if they fail without derelic

ment, with authority to collect the tion or wrong on the part of the city,

same "in full of all labor and maneither justice nor equity will tolerate

terials"). that it be charged as debtor therefor."

Nor does the city become liable beIt is pointed out in Barber Asphalt

cause, at the tax sale at which it was Paving Co. v. Harrisburg (1894) 29

sought to collect the certificates isL.R.A. 401, 12 C. C. A. 100, 28 U. S.

sued for the work, the lands upon App. 108, 64 Fed. 283, that this state

which they were chargeable were, for ment was not necessary to the deci

want of bidders, struck off to the city, sion.

pursuant to a charter provision to A city is not responsible for assess- that effect. Lovell v. St. Paul (1865) ments simply because of their return 10 Minn. 290, Gil. 229. as delinquent. Jewell v. Superior In Jenks v. Racine (1880) 50 Wis. (1904) 67 C. C. A. 623, 135 Fed. 19. 318, 6 N. W. 818, where the county


treasurer had turned over the certifi- officials had neglected to take proper cates of sale to the city treasurer, pur- steps to make the same valid, where suant to a statute directing that, aft- the charter provides that any person er the sale of any property for a de- entering into a contract with the city, linquent tax, the county treasurer who agrees to be paid from special shall pay the city treasurer the assessments, shall have no claim upon amount which may have been re- the city in any event except from the turned delinquent, “either in cash or collection of special assessments. in certificates of sale of lots or par- Heller v. Milwaukee (1897) 96 Wis. cels of land returned as delinquent, 134, 70 N. W. 1111. it was held that the city could not But it has been held that where the be held liable for the amount of the city, in default of other bidders, has tax assessed against the property cov- become the purchaser, taking out tax ered by the certificates of sale, upon certificates reciting that it has paid the theory that the certificates repre- the amount of assessment, interest, sented cash in the hands of the city and cost, it is estopped from contratreasurer.

dicting such recitals, and is liable to And in Zwietusch Milwaukee apply the amount of the purchase to (1882) 55 Wis. 369, 13 N. W. 227, the assessment fund. Barber Asphalt where the city bid in a parcel and Paving Co. v. Chicago (1908) 139 Ill. assigned the sale certificate to the App. 128. contractor, taking up his original cer- And it has been held not illegal for tificate and later giving him a tax the city to appropriate general funds deed, and he was subsequently ousted to pay for such purchases, and that by the former owner, owing to a de- when such an appropriation has been fect in the assessment, it was held made, the holder of the special asthat the city was not liable, there be- sessment voucher may proceed by acing a provision in the charter that in tion directly against the city, without no event should the city be responsi- resorting to mandamus in the first inble, and in the contract that the cer- stance. Chicago v. Union Trust Co. tificates should be accepted in full (1908) 138 Ill. App. 548. payment in satisfaction of the work, In Richardson v. Brooklyn (1861) and that the contractor should have 34 Barb. (N. Y.) 569, a city which, in no claim for any compensation except the absence of other bidders, had in the certificate.

struct off lots to the contractor withA city is not responsible for deficits out authority, was held not liable bein the special funds, resulting from cause of refusal to resell the propthe sale of delinquent property for erty, it appearing that under the law less than the amount of the assess- sales could be made only to those who ments charged against it, the city would, for the lowest term of years, having obtained all that it could for pay the amount charged upon the lot, the property. Morris v. Sheridan with interest and expenses, particular(1917) 86 Or. 224, 167 Pac. 593. A ly where the city offered to deliver the charter provision to the effect that, if certificate of sale to whoever would a lot is sold for ess than the assess- take the property at the bid, and pay ment, the common council shall sup- the assessment, interest, and expenses. ply the deficiency out of the general In Garden City v. Trigg (1897) 57 fund, if in its opinion such improve- Kan. 632, 47 Pac. 524, holding the city ment is necessary, was held inappli- liable on the warrants remaining uncable in this case, since the council paid, the liability was not predicated had not expressed the opinion that the upon any fault of the city, but upon improvement was necessary.

an express stipulation, the validity of A city is not liable for the amount which was upheld, that if the fund paid for a certificate of sale of land, provided by assessment against the for nonpayment of assessments for a property benefited was sufficient or local improvement, which certificate available at a specified time, payment is void for the reason that the city should be made out of any unappro


priated moneys in the city treasury. improvements out of its general The case is therefore within the scope funds, compromised with certain of of the annotation.

the owners and accepted from them

less than the amount assessed, it was 1. Rebates; compromises.

held generally liable to the holder of A city which wrongfully rebates to a warrant issued upon the general asproperty owners a sum, in the aggre- sessment fund. gate, more than sufficient to pay the In Conway v. Chicago (1908) 237 amount of interest due on local im- Ill. 128, 86 N. E. 619, where the conprovement bonds, is liable for such

tractor agreed to make no claim interest. Burt v. Chicago (1914) 185 against the city in any event, except Ill. App. 228. It should be observed from the collections of special assessthat the liability of the city for inter- ments, and to take all risks of the inest in consequence of the misappro- validity of special assessments priation, misapplication, or withhold- of the proceedings therein, or for ing of funds collected on account of failure to collect the same, it was the special assessment is beyond the held that the city was not liable scope of the annotation.

for the amount of rebates to property And where the rebates are paid in owners, which it made in good faith, money out of the special fund, the but erroneously, in consequence of a city is directly liable. Barber As- misapprehension as to the legal basis phalt Paving Co. v. Chicago (1908) on which the assessment should have 139 Ill. App. 121.

been made, the amount of such reWhere the board of public works bates never having come into the determined that the special benefits hands of the city in cash, but having to the property within the improve- been left with the property owners. ment district and the benefits to the The court said that the remedy, so far city would be equal to the estimated as these rebates were concerned, was cost of the improvement, but sub

by mandamus to compel the performsequently, as permitted by statute,

ance of whatever legal duties the city the assessments against the prop- was under, in connection with their erty benefited were reduced so as

collection from the taxpayers. It was to create a deficiency in excess of so held, notwithstanding the sugges$5,000 on the contract price, the

tion that difficulties arising out of the city is liable for such deficiency under lapse of time would prevent the cola statute providing that in case the lection of the original assessments, or assessments are found to be exces- the levying of a supplemental assesssive the board shall have the power ment covering such rebates. The to order the payment of the excess out court said that, however that might of the city funds; and such liability be, it was not inclined to extend the of the city is not affected by the pro- general liability of a municipality for visions in the notice to bidders, special

assessments beyond that whereby the city disclaims responsi- which results from a failure to pay bility for sums due on uncollected as

over money actually collected by it. sessments, that provision being inap- A city is not liable to the contractplicable to a reduction of assessments, or for the amount of special assessnor by the proviso of the statute that ments against certain property benot more than $5,000 shall be paid out

cause the board of county commisof the city funds for any one improve- sioners complied with its request to ment, unless pursuant to an ordinance order the redemption of the property specially appropriating the same for

on the payment of a small sum and such specific improvements. Indian- the making of certain improvements. apolis v. American Constr. Co. (1911)

Atchison v. Friend (1908) 78 Kan. 36, 176 Ind. 510, 96 N. E. 608.

96 Pac. 348. The court said that if So, in Sheare v. Seattle (1897) 18 the city had refused to make an asWash. 298, 51 Pac. 385, where the city, sessment, or to put the taxing machinhaving general power to pay for street ery into motion, it would have become directly liable to the contractor, 661, 32 L.R.A.(N.S.) 163, 128 N. W. but it did, in fact, make the assess- 24, the city was held liable where it ment, and certified its action to the failed and neglected to collect the ascounty commissioners, and it was the sessments, and entered into an agreelatter who made the compromise and ment with the owner of lots by which ordered the redemption, the request of it attempted to release them from the the city in that regard being merely lien of the special assessment, and advisory.

caused the same to be canceled and In Ward v. Lincoln (1910) 87 Neb. discharged of record. G. H. P.

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Easements, $ 40 — way of necessity grant bordering on ocean.

1. Where a grant of land borders on the ocean, there exists no way of necessity over remaining land of the grantor, although the passage by water may not be as convenient as a passage by land.

[See note on this question beginning on page 1310.] Easements, 8 38 way of necessity Highways, 8 3 - effect of user. convenience.

6. A highway may be proved by 2. Convenience alone cannot give a long-continued user. right of way of necessity.

See 13 R. C. L. 33; 3 R. C. L. Supp. [See 9 R. C. L, 770; 2 R. C. L. Supp. 4; 5 R. C. L. Supp. 684.] 872.]

Highways, & 3 - establishment by Easements, $ 38 – way of necessity


user. over stranger's land. 3. There can be no way of necessity

7. Mere use of a way by the public,

without the essential characteristics over a stranger's land. [See 9 R. C. L. 770; 4 R. C. L. Supp.

of nonpermissive character, is not 625.)

sufficient to establish a way by user. Dedication, 81 -- public use.

Highways, § 3 sufficiency of user 4. Dedication means an appropria- to establish. tion of land by its owner for public 8. Public user of a strip of unin. uses.

closed seashore property, largely bar[8 R. C. L. 881; 2 R. C. L. Supp.

ren, sufficient to establish a public 672.]

highway, is not shown by the facts Evidence, 478 burden of proof

that it was more or less used by huntdedication.

ers and others for passage to and 5. One claiming dedication of land to public use has the burden of show

from the seashore; that fishermen ing by acts or declarations of the

went to their boats over it; that seaowner, or by some other competent

weed from the shore was hauled over testimony, a clear and unequivocal in- it, and that the public passed over it tention to dedicate to public use.

at will as occasion demanded.

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APPEAL by defendants from a decree of the Supreme Judicial Court for York County, in Equity, in favor of plaintiff in an action brought to enjoin the use by defendants of a certain way over plaintiff's land. Affirmed.

The facts are stated in the opinion of the court.

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