The Savannah morning news., 1902-08-23
CITY WON ITS CASE
LIBERTY STREET PAVING ASSESS
MENT DECLARED LEGAL.
IN LENGTHY DECISION
JUDGE BARROW REVIEWS CASE
AND QUOTES AUTHORITIES.

Pavfng-AmOunt Involved 1900, In
terest and COsts-Each COnten-
ton of Defendant Discussed Thor
OughIy and Reasons Given for the
Decision.
One of the most interesting as well
~ one of the last of the Liberty street
paving cases, that of the Mayor and
aldermen of Savannah against Charles
w Lufburrow, as administrator. with
the will annexed, of NJ. Lufburrow'
was decided by Judge Pope Barrow
of the Superior Court yesterday in IA
vor of the plaintiff. The decision which
was written out at length, was gen
eral review of the case and the law
governing it. In part 1t was as fol-
lows:
THE case came on to be heard at
this term of the COURT and. by con-
sent of all parties, was tried before
the judge, without the Intervention OF
a jury. with power to pass upon all
questions of fact as we'll as of law, and
10 write out a judgment in the case
TO possess the same force and effect to
all iHltnlo anu pun pOSCSs oo IL NANAN
had been a trial by jury and judg-
ment thereupon.
THE case was heard before the
judge on Aug. a. 1902, but judgment
was not rendered that day, it being
held up in order to give counsel for
the defendant in fl ia an opportunity
to file a brief containing some addi-
tional authorities. This having been
done, Judgment is now rendered by
the court in favor of the Mayor and
Aldermen of the city of Savannah, the
plaintiffs in fl ia, against Charles w.
Lufburrow, as administrator, ct al, d.
recting that the execution do proceed
and that the affidavit of illegality be
not sustained.
History of the Case.
1T appears that on the Goth day of
May, 1888, an ordinance was passed by
the Mayor and Aldermen of Savannah
providing for the paving of a portion
of Liberty street. and assessing two
thirds of the cost of such paving on
the real estate abutting on each side
of the street or lane improved. There
was a defect which amounted to an
illegality in the method prescribed by
this ordinance for apportioning the
cost among the abutting owners of the
property. assessed, in that it failed to
deal with the city as the owner of the
frontage of intersecting streets on Lib
erty.
After the decision of the Supreme
Court, in the case of Bacon VS.. Mayor
and Aldermen, 91st Georgia, 500, an
other ordinance was passed by the
Mayor and Aldermen, Aug. 2, 1893,
amending the original ordinance OF
May 3d. 1888, so as to make the APP
portionment conform to the decision
of the Supreme Court.
Among other lots abutting on that
part of Liberty street thus improved
by paving was lot No 46 Jackson
ward, which had formerly belonged 20
the estate of one Matthew Lufburrow.
who left it to Mary G. Lufburrow, his
wife, for life, and after her death TO
Orlando H. Lufburrow for life. and ar
ter his death to his children in fee in
remainder.
sale of the Property.
Mary G. Lufburrow the first life
tenant, died May II. 1886. Orlando H.
Lufburrow, the second life-tenant, died
March 10, 1889. The remainder men
applied to the Superior Court for a de-
cree of partition, and as lot No. 46
could not be divided in kind they asked
that it be sold and the proceeds be
divided. On Dec. g 1889, a decree was
rendered ordering a sale in pursuance
of this petition, and on Jan. Is. 1890,
the sale was confirmed by the judge.
AT the said sale lot No. As became
the property, by purchase, of Fletcher
A. Exley. According to the terms of
this sale, the purchaser took it free
from all liens or encumbrances what
soever On May "a, 1890, all parties be-
ing present, and consenting thereto,
the judge redered a supplemental de-
cree by which it was provided that the
proceeds of the sale for partition should
be distributed to the co-tenants as
their interest might appear. except $400,
which was to be held in court ito an
swer the claim now pending by the
Mayor and Aldermen of the city of Sa-
vannah, against the specific property
for the paving of Liberty street.
1T was conceded in the argument
at the bar that the city consented to
release it's lien upon the lot No. 49, and
look to the s400, so that the purchaser
of the lot could get an unencumbered
title. upon copdition that its right &c
have the $400. or such part thereof as
its execution and interest and costs
amounted to, should depend upon
whether or not it had a lien upon the
lot itself for the paving. That is to
say, the right to the money was made
to turn upon the right to levy on the
land and collect the pavement assess
ment out of it. it being understood
that this much of the proceeds took
the place of the land itself
Grounds of the Contest.
1T was strenuously urged by counsel
for Lufburrow, the defendant in ii ia,
that this execution could not proceed
because it was directed to be levied
on the land of che estate of Matthew
Lufburrow when the property to be
levied upon did not belong at that time
TO the estate of Matthew Lufburrow.
but did belong to F. A Exley at the
time the execution was issued.
THE date of the execution was Nov.
rs, 1898. He further said that it did
not belong to the estate of Matthew
Lufburrow on May 80. 1885, when the
original paving ordinance was passed,
but that it was then the property of
Orlando H. Lufburrow, the second of
the two life tenants. The contention of
the defendant in fl ia is that no lien
was created against the specific prop
erty by the paving ordinances and that
none could be created by the issue of
the execution. because it was not di-
rected against the true owner of the
land.
"It is wholly immaterial who the
owner may be at that time. The lien
is against the property regardless OF
whether ii belongs to an estate, to an
individual, to church. a charity, or a
corporation for business purposes. The
theory upon which the power confer
red upon the Mayor and aldermen to
impose this burden rests is that this
particular property abutting on this
particular local improvement has re-
ceived special benefits from the i'm
IN y frgta aNh -