#### K. G. MORRIS et als., Taxpayers, v. CITY OF HENDERSONVILLE.

(Filed 17 February, 1915.)

Cities and Towns — Paving Streets — Street Railways — Cost of Paving — Direct Liability — Interpretation of Statutes.

Where legislative authority is given a city to pave its streets and to assess one-third of the cost against the property owners on each side thereof, with the further provision that whenever a railroad or street railway is located thereon it may be required to grade and pave that portion of the street to a certain width, etc., constituting the cost a charge against the railroad, etc., to be collected by appropriate action, the charge against the company should be regarded as a primary liability which will relieve the owners upon the street where the railway is located, as well as the city, of that part of the expense.

*401Appeal by defendant from Webb, J., at November Term, 1914, of HENDERSON.

Civil action beard on case agreed.

Plaintiffs, taxpayers and abutting owners on Eiftb Avenue, seek to correct an assessment against them for tbe cost of paving said avenue, alleging tbat same bas been erroneously apportioned by tbe city authorities: (1) Tbat a portion of paving assessed against a street railroad along tbe avenue was not first deducted from tbe estimated cost. (2) Tbat abutting owners were not chargeable with any portion of cost for paving street at point of intersection with cross streets. ■

There was judgment for plaintiffs on tbe first position, and defendant excepted and appealed.

Staton & Rector and J. R. Shipman for plaintiff.

McD. Ray and R. W. Rubanh for defendant.

Hoke, J.

Tbe charter of tbe city of Hendersonville authorized tbe municipal authorities to pave tbe streets under certain conditions, and section 13 in effect provides tbat when this is done pursuant to tbe specified requirements, tbe costs thereof shall be charged according to tbe amount of paving done in front of their respective premises, one-third each by tbe property owners on each side of tbe street and one-third by tbe city.

In section 14 of tbe charter it is further provided tbat whenever a railway or street railway runs its tracks along an avenue, street, or railway, it may be required to grade and pave tbat portion of tbe street, avenue, or alley lying between said tracks and 1 foot immediately outside of each rail, etc., and if tbe owners or operators of said track shall fail or neglect to make tbe improvement, tbe city shall make tbe same and charge tbe cost thereof to tbe owners or operators, etc., and tbe claim shall constitute a debt in favor of tbe city, to be collected by appropriate action, etc.

In this case it appears from tbe facts agreed upon that tbe avenue in question extends from Main Street about 1 mile to tbe corporate limits; tbat tbe Laurel Park Street Railway extends and is operated along tbe entire length, occupying 7 feet, including tbe 1 foot on tbe outside of each rail, and tbat tbe city authorities, under tbe power conferred by tbe charter, bas assessed tbe railway with tbe cost of paving tbat portion of tbe avenue occupied by its railroad, as above defined, and bas assessed against plaintiffs and other abutting owners two-tbirds of tbe entire cost of paving tbe avenue, without deducting tbe amount assessed against tbe railway.

Upon these facts, we concur with bis Honor in tbe view tbat in making tbe costs of paving a charge against these owners, in tbe proportion of *402one-third to each, it was intended to make them bear equally in that proportion the costs for which they were liable, and if a portion of the avenue has been paid for by a railroad company, occupying the street, or the same has been lawfully assessed against such company pursuant to the charter and is collectible, the amount should be deducted before apportioning the assessment between the city and the abutting owners. The assessment against the railroad, having been made pursuant to the provisions of the charter, has the effect of imposing the charge against the company as a primary liability, and should be held to relieve the landowner and the city equally to the extent indicated.

This, we think, by fair intendment, is the correct interpretation of the charter provisions and is in accord with authoritative decisions elsewhere. City of Shreveport v. Prescott et al., 57 La. Annual, 1895; Philadelphia v. Spring Garden, etc., Co., 161 Pa. St., 522.

We were referred by counsel for defendant to Hager v. Melton, 66 W. Va., 62, as an authority against this position. There is some distinction in that case, as the charter there was silent as to imposing assessments for paving purposes against street railways, and the city authorities, having assessed the abutting owners with two-thirds costs of paving the street, required a street railway to pave between its tracks as a condition for granting the franchise. In any event, the decision, which was by a divided Court, may not be recognized on the facts presented here.

It may be well to note that, on the second position, the judgment below was in favor of the city, and the plaintiffs not having appealed, the question -is not before us..

We find no error in the record as presented, and the judgment below is

Affirmed.