CHARLESTON.

#### Town of New Martinsville *v.*Joseph Shiben

(No. 6552)

Submitted January 21, 1930.

Decided January 28, 1930.

*501
      *Willis & Ball,*for plaintiff in error.

*W. J. Postlefhwait,*for defendant in error.

Hatcher, Judge:

This is an aetion to recover tbe cost of paving a sidewalk in front of defendant’s property. Tbe work was done by tbe town under an ordinance wbicb provides that tbe town shall establish tbe grade for pavements, notify and require property owners to lay tbe paving', and, if after a reasonable time an owner fails to do so, lay tbe pavement at tbe owner’s expense. Upon a demurrer to the evidence and a conditional verdict of tbe jury, tbe circuit court entered judgment for tbe plaintiff.

Defendant’s property bad a frontage of one hundred and eighteen feet, which was on tbe established grade, except for a distance of twenty feet which sloped until tbe lower end was *2Yz*to 3 feet below tbe grade. In tbe autumn of 1927 tbe town erected a board wall to grade height along tbe sloping portion at defendant’s property line and put in curbing forms along tbe street; but did not fill in the slope. Tbe town then notified tbe defendant to begin paving tbe sidewalk with class A concrete within ten days. Later tbe width of tbe walk was changed and in November, 1927, tbe town served defendant with a corrected notice to pave. Cold weather prevented paving until spring. On April 11, 1928, a third notice to pave was given defendant. He took no steps to comply therewith, and on May 9, 1928, tbe town brought tbe twenty feet to grade and paved tbe entire one hundred and eighteen feet. Tbe defendant was present at different times during tbe day and discussed tbe work with tbe contractor. He not only made no protest, but informed tbe contractor that “be wanted a good job done.” Tbe cost of bringing the twenty-foot section to level, etc., was separated from tbe rest of tbe work and the defendant was assessed only with tbe cost of paving tbe one hundred and eighteen feet, wbicb was $184.88.

The defendant contends that it was not bis duty to. lay the walk until after tbe town bad prepared tbe grade; that tbe *502grade was not prepared until May 9th; that no notice or opportunity to do his part of the work was given him. after the grade was prepared; and that the assessment is void because the work was done without proper notice.

His contention is based on the principles announced in *Gassaway*v. *Klein,*77 W. Va. 461, and *Fry*v. *Ronceverte,*93 W. Va. 388. We are committed to those principles and have no inclination to depart therefrom. See *Yale College*v. *New Raven,*57 Conn. 1, 8; Cooley’s Const. Lim., (8th Ed.), Vol. 2, p. 1077 (note 3); 44 C. J., 206. The facts in this case, however, render the foregoing authorities inapplicable. It is common information that concrete pavements are properly constructed in sections. Ninety-eight feet of defendant’s frontage was at grade and seemingly ready for paving when the notices were served. No reason appears why defendant should not have complied with the notices as to the ninety-eight feet had he so desired, leaving the twenty-foot sloping section until it was brought to grade by the town. The twenty-foot section was a very small per cent of the entire frontage. It was clearly separable from the rest of the work. Because it was below grade prior to May 9, 1928, does not justify his refusal to pay for the pavement on the ninety-eight feet which were at grade. His failure to pave the portion at grade, his knowledge of the work as it progressed on May 9th, and his admonition to the workmen to do a good job, clearly negative a desire on his part to pave the twenty-foot section and indicate a waiver of his personal right to do so after it was brought to grade on that day. Further notice was therefore unnecessary, and his defense as to the twenty-foot section is also unavailing.

The judgment of the circuit court is accordingly affirmed.

*Affirmed.*