¶1(specially concurring).
¶2My concurrence in the foregoing opinion is based upon an assumption that the court does not wish to hold, and in my opinion it does not, that a disgruntled property owner can interpose a claim of confiscation to block a whole paving improvement desired by an overwhelming number of the residents of his town or city, or section thereof. Even if the lot paved should have a value less than combined cost of the paving plus value of the lot before paving, thus representing an excess of cost of improvement over benefit, there is no right in the property owner to have his property exempted from a lien for such amount as would represent what the benefit from the paving is actually shown to be. He is not to enjoy the benefit and go scot free! Nor is his dissatisfaction to hold up the progress of a whole city.
¶3Personally, I feel the claim of confiscation here made is premature and should come as a defense to any suit to foreclose the lien. City of Clovis v. Scheurich, 34 N.M. 227, 279 P. 876. Nevertheless, I concur in sending case back to call upon city for its proof to the end that the court may settle finally the question of benefits after the case is heard at length.
¶4Accordingly, I concur in the result.