Wooddy v. Old Dominion Insurance Company.

he has complied with the before-recited condition of the policy which he contracted for.

The policy contains this further provision: "Any interest in property insured, not absolute, or that is less than a perfect title, or if a building is insured that is on leased ground, the same must be specifically represented to the company and expressed in this policy in writing, otherwise the insurance shall be void."

It appears that at the time the appellant contracted for the insur anee of the building he had the fee simple estate conveyed by deed in which a lien was reserved for the payment of purchase-money, about $300 or $350 of which remained unpaid. It seems that the existence of this lien was not known to the agent, Rowzie, nor was it mentioned by the appellant; and it is contended by the appellee's counsel that the failure of the appellant to disclose it vitiates the policy.

The first part of this condition, "any interest in property insured, not absolute," has been judicially construed in other cases as referring to the character or quality of the estate. The term "absolute," in such a condition, has been held to be synonymous with vested, and used in contradistinction to contingent or conditional. Hough v. City Fire Ins. Co., 29 Conn. 10. And so, as it seems to me, the words, "or (interest) less than a perfect title," in the connection in which they are used, should be construed as referring to the quantity of the interest or estate, which is measured by its duration. The word "less" is a term denoting quantity; an estate or interest "less than a perfect title" may therefore mean one that is limited in its extent and duration as an estate for life, for years, or at will— "less" than an estate in fee simple, or than one of unlimited duration. If this be not the true construction, I am still of opinion that under no proper construction can these words be taken to have been intended to guard against mere incumbrances. If such had been the intention, language more appropriate for the purpose would have been employed, as we find in policies where disclosure of incumbrances is required. In such the requirement is generally plainly expressed. The mere failure, therefore, of the appellant to make known the existence of the lien which appeared on the face of the deed (the policy not requiring such disclosure, and no inquiries being made) did not vitiate the insurance, there being no fraudulent intent; and no such intent is to be inferred from the evidence. West Rocking ham Mut. Fire Ins. Co. v. Sheets, 26 Gratt. 854.

The fact is, the property is proved to have been worth probably $1,900. The amount of insurance was $1,000, and the lien, at the outside, for not more than $350. So that the risk was not seriously, if at all, affected by the incumbrance.

[Omitting a minor point.]

I am of opinion, for the reasons stated, to reverse the decree of the Chancery Court and give the appellant a decree for the amount of the insurance with interest and costs.

MONCURE, P., and CHRISTIAN and ANDERSON, JJ., concurred. STAPLES, J., dissented.

Decree reversed.

SANDS V. CITY OF RICHMOND.

(81 Gratt. 571.)

Municipal corporation – authority to require lot owner to pave sidewalks.

A city ordinance, requiring the owners of lots on streets which have been graded, paved and guttered, to pave the sidewalks adjoining their lots, is valid, and if the owners do not comply, the city may do the work and collect the expense from the owners.

Johnson, Williams & Boulware and Sands, for appellant.

Keiley, for appellee.

STAPLES, J. The charter of the city of Richmond provides that whenever a new street shall be laid out, a street graded or paved, or any other improvement whatever made, the city council may determine what portion of any of the expenses thereof ought to be paid from the public treasury of the city, and what portion by the owners of real estate benefited, or may order and direct that the whole expense be assessed upon the owners of real estate benefited thereby Under an ordinance adopted by the city council, whenever a street is opened, graded, guttered and curbed, in whole or in part, includ· ing the walkways, it is made the duty of the owner or owners of property along said street to pave the walkway the full width across their fronts with bricks, or such other material as the committee on streets may approve. Where the property corners on two streets,

Sands v. City of Richmond.

the property owner shall pave the said walkway along his depth onehalf the distance at his own cost, and the city shall pave the other half at its cost. If upon notice by the city engineer, the owner fails to make such pavement, the engineer is authorized to have the work done by the city contractor, and the costs are to be collected from the owner.

There are other provisions of the ordinance bearing upon the subject, but they are not necessary to be cited here.

The appellant, acting as receiver by appointment of the Chancery Court of Richmond, in the case of Atkinson v. Atkinson, was noti fied by the city engineer to pave the sidewalks fronting the property under his control as such receiver. The appellant having failed to comply with this order, the city engineer caused the work to be done by the city contractor; and the question of the receiver's liability was referred to the Chancery Court, from which the receiver derived his authority. That court sustained the ciaim of the city, and from that decision an appeal was taken by the latter to this court.

In the petition for an appeal and in the argument here, the ordinance already cited has been assailed on various grounds.

It is insisted that the assessments authorized by the ordinance - if they are to be regarded as an exercise of the taxing power-violate the rule of uniformity and equality required by the Constitution; and if they are not to be so regarded, they are mere appropriations of private property for public purposes without just compensation. This question was fully considered in the case of City of Norfolk v. Ellis, 26 Gratt. 224. It was there held that special or local assessments are a peculiar species of taxation, governed by principles that do not apply to the general burdens imposed for State and municipal purposes. They proceed upon the assumption of peculiar benefits conferred upon the persons liable to the tax in the enhancement of the value of their property by the contemplated improve ment. It is not necessary now to go into the argument in support of these propositions.

The validity and constitutionality of these assessments are sustained by an array of authority and force of reasoning which ought to be decisive of the question. Most of the cases on the subject may be found in 2 Dill. on Munic. Corp., §§ 596 to 600; Cooley's Const. Iim., §§ 619 to 636. In Cooley on Taxation, chap. 20, pages 416 to 473, the whole subject is exhaustively discussed, and all the objec tions to this species of taxation fully answered. It is not denied

Sands v. City of Richmond.

that a local assessment may so far exceed the limits of equality and reason, that instead of being a tax or contribution, it would practically amount to confiscation of the property benefited. In such cases it would be the duty of the courts to interpose for the protec tion of the citizen. Alley v. Drew, 44 Vt. 174.

The real difficulty in this class of cases is not with respect to the power to assess the expense of local improvements upon the property specially benefited thereby, but with respect to the method or basis of apportioning the expense among the property holders adjacent to the improvement. It has been held in a number of cases, not allowable to impose upon each owner of a lot upon a street the entire cost of grading and paving the street along its front, without reference to any contribution to be made by any other property; but that the true mode is to make the street a taxing district, and to apportion the expense of the improvement among the various lots in proportion to their frontage. An opinion was incidentally expressed in accordance with this view in Ellis v. City of Norfolk, but the case did not call for a decision of that question. Nor is it necessary to decide it in the present case, for here the assessment is not for the purpose of grading and paving the street, but for paving the sidewalk after the street is graded, guttered and curbed, including the sidewalk. The city at its own expense grades and paves its streets, but requires the owner to pave the sidewalk in front of his lot.

The owner is supposed to be peculiarly interested in and benefited by the sidewalk in front of his lot, but in the street he is generally interested along with other citizens. Whether this distinction be sound in principle or not it is needless to inquire. It is sustained by very respectable authorities.

In Goddard, Petitioner, 16 Pick. 504, a leading case recognized as authority, the court say: "Although the sidewalk is part of the public street, and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generally has some peculiar interest in it and benefit from it distinct from that which he enjoys in common with the rest of the community. He has this interest and benefit often in accommodating his cellar-door and steps, a passage for fuel, and the passage to and from his own house to the street. To some purpose, therefore, it is denominated his sidewalk." In Woodbridge v. City of Detroit, 9 Mich. 274, 310, Judge CHRISTIANCY, while maintaining with great ability the invalidity of an Assessment upon the owner to defray the expense of grading and

Sands v. City of Richmond.

paving the street adjacent to his property, partly upon the ground that such an improvement is for the public benefit, and the owner is entitled to no peculiar use of the street not common to the public, concedes that the same rule does not apply to an assessment for the purpose of paving the sidewalk, in which the adjoining owner is recognized as having a peculiar interest and benefit distinct from that which he enjoys in common with the rest of the community.

In his work on Taxation, Judge COOLEY strongly controverts the justice as also the legality of assessing each individual lot with the cost of improvements along its front. The reason he assigns is, that if every owner is compelled to construct the street in front of his lot, his tax is neither increased nor diminished by the assessment upon his neighbors. Nothing is apportioned or divided between him and them, and each particular lot is in fact arbitrarily made a taxing district and charged with the whole expenditure thereon. From accidental circumstances the major part of the cost of an important public work may be expended in front of a single lot, these circumstances not at all contributing to make the improvements to the lot thus specially burdened more valuable, perhaps even having the opposite consequence.

The learned author nevertheless concedes that a different rule applies to assessments for the construction and repair of the sidewalks. He declares that the cases of assessments for the construction of walks by the side of streets in cities and other populous places are more distinctly referable to the power of police. The duty imposed upon the owners is enjoined as a regulation of police, made because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing with promptness and convenience the duty of putting them in a proper state, and of afterwards keeping them in a condition suitable for use. Upon these grounds the authority to establish such regulations has frequently been supported. Cooley on Taxation, 398, 453; see also Mayor v. Maberry, 6 Hun, 368; Cooley on Const. Lim. 734.

Whether the learned author is correct in referring the improvement of the sidewalk by the owner to the police power, or whether it belongs to the taxing power, it is not material to discuss. It is a power exercised by the municipal authorities of perhaps three-fourths of the cities of the United States under their respective charters; it is just and reasonable in itself; and, with a few exceptions, is approved by the whole current of decisions.

VOL. XXXI-94