[251 U.S. 104, 105] Messrs. John B. Dudley, Henry G. Snyder, and Henry E. Asp, all of Oklahoma City, Okl., for plaintiff in error.
Mr. D. A. Richardson, of Oklahoma City, Okl., for defendants in error.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
In 1909 the owners platted Linwood Place, adjacent to Oklahoma City, for building lots, streets, etc. To procure extension of a street car line therein, they dedicated a strip forty feet in width, lying along the center of what is now known as Linwood Boulevard, to plaintiff in error's predecessor, 'its successors and assigns, with a like effect as though deeded and conveyed to said company in fee simple by separate deed,' on condition, however, that the property should be subject to reasonable police regulations, that the grantee should construct crossings over the tracks and also put down curbing and pave the crossings whenever the boulevard itself should be paved. Subordinate to above grant the streets as shown on the plat were dedicated to the public for ordinary purposes of travel. Afterwards car tracks were laid in the center of the forty-foot strip and the corporate limits of Oklahoma City were extended to include Linwood Place.
In order to provide funds for paving the public roadways along Linwood Boulevard, the city undertook in 1910 to lay a tax upon the adjacent property, and directed that it be apportioned according to benefits. The board of commissioners apportioned to the central strip as its proper share of the expenses, $12,046.16. Instead of assessing this amount directly against the property, the city council erroneously assessed it against the street car company. Thereafter, the city and the Severns Company, which had put down the paving, procured from the district court of Oklahoma county a mandamus directing a reassessment against the land itself, but a hearing upon objections thereto was not specifically provided for.
The Supreme Court of the state (170 Pac. 216) declared:
It then held the land was subject to assessment according to benefits resulting from the paving, and--
Nevertheless, it ordered an affirmance of the judgment of the trial court, without more, and by so doing left in serious doubt the right of plaintiff in error to a new and adequate hearing in respect of the assessment. We think, therefore, that the judgment below should be modified and corrected so as definitely to preserve such right. So modified, it is affirmed. The costs here will be equally divided.
The terms and conditions in the original franchise granted by Oklahoma City to the plaintiff in error, which require it, under given conditions, to pave or pay for paving certain portions of occupied streets, are not applicable in the circumstances here presented and cannot be relied upon to defeat the assessment now in question. The land supposed to be benefited belongs to the company; the city has made no contract which prevents imposition upon it of a fair share of the cost of beneficial improvements. L. & N. R. R. Co. v. Barber, 197 U.S. 430 , 25 Sup. Ct. 466.
Modified and affirmed.