158 Iowa 747 | Iowa | 1912
Certain special assessments having been levied upon city lots owned by William H. Bailey, since deceased, for expenses incurred in the paving, guttering, and curbing of a street known as Prospect boulevard, the owner appealed therefrom to the district court. Upon a hearing of the evidence the district court modified and reduced said assessments in the manner hereinafter mentioned, and the city appeals from said decision to this court.
The material facts may be stated as follows: Mr. Bailey became purchaser of the lots by contract in June, 1909. Prior to that time in the year 1907 or 1908, the city council had ordered the construction of a combined curb and gutter in front of the property, but the work done under this order had been rejected. A petition in which Mr. Bailey’s grantors joined had also been presented to the council for paving the street. In this petition the signers waived, or offered to waive, the benefit of the statute which limits the liability of adjacent property to special assessment for any street improvement to 25 per cent, of its actual value. Thereafter, in April, 1909, the council, after the usual resolution of necessity, ordered the paving of said street, declaring in the resolution therefor that such order was made “without the petition of property owners.” The work of paving thus ordered and the final construction of the curb and gutter were done practically at the same time, but under separate contracts. The schedule of assessments for the curbing wias presented to the council on September 15, 1909, and five days later a like schedule for the cost of the pavement was also presented. Further proceedings for the consideration of objections and protests against said proposed assessments were carried along in parallel lines, and they were finally approved and levied at or near the same time. Mr. Bailey appeared at the hearings, and protested against the assessments on several grounds, but two of which are involved in this appeal, and to these alone do we give attention. These objections are (1) that the construction of the pavement, curb, and gutter constitute but
The council having overruled these objections, ' Mr: Bailey appealed to the district court, which, on hearing the evidence; held the objections well taken, ,and reduced the assessment for the • combined improvement to the sum of «$1,200, which it found to be the one-fourth of the actual value of the property. It is from this decision that the city has appealed.
The argument on the part of the city is that this statute makes the work of paving, curbing, and guttering independent items of street improvement, and the council may lawfully so treat them, and make them the subject of separate and distinct contracts. Starting with this construction of the statute, it is insisted that the council did not exceed its powers-in making the pavement, and the curb and gutter which border it, the subject of separate contracts, each of which in the
If these assessments, though resulting from separate apportionments and though confirmed at different times, are for the expense of what is practically and 'really one improvement, then the phrase from the act of 1840, ‘in any one case,’ applies, and there was substantial error in the assessment. ... If the paving of a street is so disconnected from other work upon the street in necessity and effect as to be a different and separate improvement from grading, regulating, setting of curb, and gutter stones and flagging, or if the adoption of a peculiar kind of pavement is so, then there may be said to have been two classes of improvement upon this street. If they are not so disconnected, then it cannot be' said that there was that lapse of time between the ordering of them as to make them distinct. . . . That it was not all done at once does not necessarily determine that it was two distinct improvements. Necessarily regulating and grading must precede paving, and so must to some degree the setting of curb and gutter stones. Nor is the fact that there were different kinds of pavement on different parts of the street conclusive that these Avere distinct improvements. . . . If one improvement, then there should have been but one assessment; and, if but one assessment, it could not have exceeded the half assessed value of the lots, and, as it does exceed that, it is to some extent illegal. (In. re Walter, 75 N. Y. 356.)
The propriety and justice of such holding is too manifest to require argument in its support. That the paving, curb
It follows from the foregoing discussion that the trial court did not err in treating the two assessments as constituting a single burden and applying thereto the limit fixed by the statute.
The judgment appealed from is therefore Affirmed.