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unreasonably delayed in enforcing assessments, it was liable generally. It was stated in the opinion in this case that the Statute of Limitations had run as to some of the property in this


And in Bank of British Columbia v. Port Townsend (1897) 16 Wash. 450, 47 Pac. 896, the failure of the city to provide the fund out of a special assessment, until the bar of the Statute of Limitations had intervened, was held to render it liable to the warrant holders.

So, in Philadelphia Mortg. & T. Co. v. New Whatcomb (1898) 19 Wash. 225, 52 Pac. 1063, a municipality was held liable for interest where the original assessment was void, and the reassessment failed to include interest, but one reassessment being permitted.

In German-American Sav. Bank v. Spokane (1897) 17 Wash. 315, 38 L.R.A. 259, 49 Pac. 542, however, it was stated in the McEwan Case the right to recover was based on the ground of delay alone, and was there sustained as to all of the warrants, regardless of the question as to limitation. To this extent the McEwan Case was expressly overruled, but its authority for the position that the city will be responsible if it is no longer possible to enforce the tax against the property does not seem to have been impaired, until the decision in Wilson v. Aberdeen (1898) 19 Wash. 89, 52 Pac. 524, holding that the city was not generally liable, although it was conceded by both sides that the remedy under the assessment proceedings was lost. The court apparently repudiated the attempt to distinguish the Spokane Case on the ground that the remedy under the special proceedings was still available in that case; and said that the obligation rested upon the warrant holders to compel the officers of the city to proceed with the collection of the assessments, and that, if they saw fit to allow their remedy to become lost through a failure to compel an enforcement of the assessment proceedings, they, and not the general taxpayers, must bear the consequences.

The Wilson Case was followed in

Rhode Island Mortg. & T. Co. v. Spokane (1898) 19 Wash. 616, 53 Pac. 1104, holding that the complaint stated no cause of action against the city, although it expressly averred that the city had exhausted its power and authority to make and levy any local or special assessment to create a fund from assessments as provided by the contract.

And the liability of a municipality which had neglected to enforce assessments was also denied in Northwestern Lumber Co. v. Aberdeen (1898) 20 Wash. 102, 54 Pac. 935, and State ex rel. American Freehold-Land Mortg. Co. v. Tanner (1907) 45 Wash. 348, 88 Pac. 321. But in neither of these cases does it expressly appear that it was no longer possible to enforce them.

There is a dictum to the same effect in State ex rel. Security Sav. Soc. v. Moss (1906) 44 Wash. 91, 86 Pac. 1129.

The mere fact that one local assessment was defective, when there exists power in the city to levy a new one, will not make the city generally liable, where it is proceeding with due diligence to make a new levy. Stephens v. Spokane (1896) 14 Wash. 298, 44 Pac. 541, 45 Pac. 31. The court held that as long as it was within the powers of the city officers, moved by themselves or by interested parties, to collect the special fund that must be the source of payment, and that it was only when the negligence of the city had placed it out of its power to collect the special fund, that such negligence would open its general liability to warrant holders.

The decision in Stephens v. Spokane (1895) 11 Wash. 41, 39 Pac. 266, apparently holding that the mere delay of the city in taking steps to collect a fund by assessment upon the abutting property renders it generally liable. would seem to have been overruled by the later Washington cases cited in a preceding subdivision; at least, as applied to a case where there is an express provision exempting the city from liability in any event.

Where the first assessment was invalid owing to a mistake in law, and the city was proceeding to levy an

other, an action against it will not lie upon warrants payable out of the special fund, when the contract contains a clause waiving the right to demand and receive payment in any other way than from such warrants. The court was of the opinion that the city was exonerated by such waiver, even if it was negligent. Thomas v. Olympia (1895) 12 Wash. 465, 41 Pac. 191.

And in Soule v. Seattle (1893) 6 Wash. 315, 33 Pac. 384, rehearing in (1893) 6 Wash. 324, 33 Pac. 1080, the liability of the city was denied, where its delay in making a new assessment was due to honest doubt whether special authority was required from the legislature, and the city was guilty of no neglect, except as to the error in the first assessment.

e. Deficiency; assessments returned delinquent; purchase of property by municipality.

In Peake v. New Orleans (1891) 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 545, where the contract had been entered into, not by the city, but by a board of commissioners created by the legislature, such contract being for draining certain lands only a part of which were within the city, it was held that the city was not liable for a failure to collect part of the special assessment, particularly where it appeared that the delinquent property would probably realize little, if any, more than the expenses of collection. It was said by a divided court that "when a contract for local improvements is entered into, the contractor must look to the special assessments, and to them alone, for his compensation, and, if they fail without dereliction or wrong on the part of the city, neither justice nor equity will tolerate that it be charged as debtor therefor." It is pointed out in Barber Asphalt Paving Co. v. Harrisburg (1894) 29 L.R.A. 401, 12 C. C. A. 100, 28 U. S. App. 108, 64 Fed. 283, that this statement was not necessary to the decision.

A city is not responsible for assessments simply because of their return as delinquent. Jewell v. Superior (1904) 67 C. C. A. 623, 135 Fed. 19.

In New First Nat. Bank v. Weiser (1916) 30 Idaho, 15, 166 Pac. 213, the court said that it was not claimed that the city authorities had failed or neglected to make proper levies at the proper time, or that its officers had not in proper season certified to the tax collector the list of taxpayers against whom tax levies had been made on account of the bonds, and that, if all such assessments had not been paid, it was not the fault of the city, but of the delinquents; the city had no method of getting the money out of them except in a due and ordinary course of law; if the bondholder sees fit to proceed in the manner provided by statute, he can either secure his money from the delinquent taxpayer, or obtain title to the property of such delinquent free and clear of all encumbrances.

Under the law the municipality has done its full duty when it perfects its tax title to property that was delinquent and tenders the deed obtained to the contractor or holder of the local improvement bonds; and after it has done this it is not liable for any of the delinquent instalments. Conway v. Chicago (1908) 237 Ill. 128, 86 N. E. 619; Donahue v. La Grange (1914) 263 Ill. 607, 105 N. E. 762 (affirming (1913) 183 Ill. App. 222).

The municipality is not liable for deficiency upon the sale of delinquent property. New Albany v. Sweeney (1859) 13 Ind. 245 (charter provisions that the owners of lots should be liable to the contractor for the cost); Creighton v. Toledo (1868) 18 Ohio St. 447 (contractor agreed to receive a certified copy of the assessment, with authority to collect the same "in full of all labor and materials").

Nor does the city become liable because, at the tax sale at which it was sought to collect the certificates issued for the work, the lands upon which they were chargeable were, for want of bidders, struck off to the city, pursuant to a charter provision to that effect. Lovell v. St. Paul (1865) 10 Minn. 290, Gil. 229.

In Jenks v. Racine (1880) 50 Wis. 318, 6 N. W. 818, where the county

treasurer had turned over the certificates of sale to the city treasurer, pursuant to a statute directing that, after the sale of any property for a delinquent tax, the county treasurer shall pay the city treasurer the amount which may have been returned delinquent, "either in cash or in certificates of sale of lots or parcels of land returned as delinquent," it was held that the city could not be held liable for the amount of the tax assessed against the property covered by the certificates of sale, upon the theory that the certificates represented cash in the hands of the city treasurer.

And in Zwietusch v.


(1882) 55 Wis. 369, 13 N. W. 227, where the city bid in a parcel and assigned the sale certificate to the contractor, taking up his original certificate and later giving him a tax deed, and he was subsequently ousted by the former owner, owing to a defect in the assessment, it was held that the city was not liable, there being a provision in the charter that in no event should the city be responsible, and in the contract that the certificates should be accepted in full payment in satisfaction of the work, and that the contractor should have no claim for any compensation except in the certificate.

A city is not responsible for deficits in the special funds, resulting from the sale of delinquent property for less than the amount of the assessments charged against it, the city having obtained all that it could for the property. Morris v. Sheridan (1917) 86 Or. 224, 167 Pac. 593. A charter provision to the effect that, if a lot is sold for less than the assessment, the common council shall supply the deficiency out of the general fund, if in its opinion such improvement is necessary, was held inapplicable in this case, since the council had not expressed the opinion that the improvement was necessary.

A city is not liable for the amount paid for a certificate of sale of land, for nonpayment of assessments for a local improvement, which certificate

is void for the reason that the city

officials had neglected to take proper steps to make the same valid, where the charter provides that any person entering into a contract with the city. who agrees to be paid from special assessments, shall have no claim upon the city in any event except from the collection of special assessments. Heller v. Milwaukee (1897) 96 Wis. 134, 70 N. W. 1111.

But it has been held that where the city, in default of other bidders, has become the purchaser, taking out tax certificates reciting that it has paid the amount of assessment, interest, and cost, it is estopped from contradicting such recitals, and is liable to apply the amount of the purchase to the assessment fund. Barber Asphalt Paving Co. v. Chicago (1908) 139 Ill. App. 128.

And it has been held not illegal for the city to appropriate general funds to pay for such purchases, and that when such an appropriation has been made, the holder of the special assessment voucher may proceed by action directly against the city, without resorting to mandamus in the first instance. Chicago v. Union Trust Co. (1908) 138 Ill. App. 548.

In Richardson v. Brooklyn (1861) 34 Barb. (N. Y.) 569, a city which, in the absence of other bidders, had struct off lots to the contractor without authority, was held not liable because of refusal to resell the property, it appearing that under the law sales could be made only to those who would, for the lowest term of years, pay the amount charged upon the lot, with interest and expenses, particularly where the city offered to deliver the certificate of sale to whoever would take the property at the bid, and pay the assessment, interest, and expenses.

In Garden City v. Trigg (1897) 57 Kan. 632, 47 Pac. 524, holding the city liable on the warrants remaining unpaid, the liability was not predicated upon any fault of the city, but upon an express stipulation, the validity of which was upheld, that if the fund provided by assessment against the property benefited was sufficient or available at a specified time, payment should be made out of any unappro

priated moneys in the city treasury. The case is therefore within the scope of the annotation.

1. Rebates; compromises.

A city which wrongfully rebates to property owners a sum, in the aggregate, more than sufficient to pay the amount of interest due on local improvement bonds, is liable for such interest. Burt v. Chicago (1914) 185 Ill. App. 228. It should be observed that the liability of the city for interest in consequence of the misappropriation, misapplication, or withholding of funds collected on account of the special assessment is beyond the scope of the annotation.

And where the rebates are paid in money out of the special fund, the city is directly liable. Barber Asphalt Paving Co. v. Chicago (1908) 139 Ill. App. 121.

Where the board of public works determined that the special benefits to the property within the improvement district and the benefits to the city would be equal to the estimated cost of the improvement, but subsequently, as permitted by statute, the assessments against the property benefited were reduced so as to create a deficiency in excess of $5,000 on the contract price, the city is liable for such deficiency under a statute providing that in case the assessments are found to be excessive the board shall have the power to order the payment of the excess out of the city funds; and such liability of the city is not affected by the provisions in the notice to bidders, whereby the city disclaims responsibility for sums due on uncollected assessments, that provision being inapplicable to a reduction of assessments, nor by the proviso of the statute that not more than $5,000 shall be paid out of the city funds for any one improvement, unless pursuant to an ordinance specially appropriating the same for such specific improvements. Indianapolis v. American Constr. Co. (1911) 176 Ind. 510, 96 N. E. 608.

So, in Sheare v. Seattle (1897) 18 Wash. 298, 51 Pac. 385, where the city, having general power to pay for street

improvements out of its general funds, compromised with certain of the owners and accepted from them less than the amount assessed, it was held generally liable to the holder of a warrant issued upon the general assessment fund.

In Conway v. Chicago (1908) 237 Ill. 128, 86 N. E. 619, where the contractor agreed to make no claim against the city in any event, except from the collections of special assessments, and to take all risks of the invalidity of special assessments or of the proceedings therein, or for failure to collect the same, it was held that the city was not liable for the amount of rebates to property owners, which it made in good faith, but erroneously, in consequence of a misapprehension as to the legal basis on which the assessment should have been made, the amount of such rebates never having come into the hands of the city in cash, but having been left with the property owners. The court said that the remedy, so far as these rebates were concerned, was by mandamus to compel the performance of whatever legal duties the city was under, in connection with their collection from the taxpayers. It was so held, notwithstanding the suggestion that difficulties arising out of the lapse of time would prevent the collection of the original assessments, or the levying of a supplemental assessment covering such rebates. The court said that, however that might be, it was not inclined to extend the general liability of a municipality for special assessments beyond that which results from a failure to pay over money actually collected by it.

A city is not liable to the contractor for the amount of special assessments against certain property because the board of county commissioners complied with its request to order the redemption of the property on the payment of a small sum and the making of certain improvements. Atchison v. Friend (1908) 78 Kan. 36, 96 Pac. 348. The court said that if the city had refused to make an assessment, or to put the taxing machinery into motion, it would have be

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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, § 38-way of necessity convenience.


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Highways, § 3 effect of user.

6. A highway may be proved by long-continued user.

[See 13 R. C. L. 33; 3 R. C. L. Supp. 4; 5 R. C. L. Supp. 684.]

Highways, § 3- establishment by


7. Mere use of a way by the public, without the essential characteristics of nonpermissive character, is not sufficient to establish a way by user.

Highways, § 3-sufficiency of user to establish.

8. Public user of a strip of uninclosed seashore property, largely barren, sufficient to establish a public highway, is not shown by the facts that it was more or less used by hunters and others for passage to and from the seashore; that fishermen went to their boats over it; that seaweed from the shore was hauled over it, and that the public passed over it at will as occasion demanded.

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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