154 Iowa 607 | Iowa | 1912
Barrett’s addition to the city of Burlington, or so much thereof as is affected by this litigation, consists of a plat four blocks in width north and south and six blocks in length east and west, and lies immediately west of Madison avenue. This avenue is one of the main
At some time after the platting of .this addition, the city constructed a covered drain or sewer, beginning on the south line of Barrett’s addition two blocks west of Madison avenue, running thence northeasterly across the west half of block 6, in which some of the property now in question is situated, into what is known as Denmark street, thence north on Tenth one block to Acres street; thence east on Acres one block to Madison, .and across Madison into the outlet above mentioned. The lots owned by the plaintiffs Dankwardt and Harvey are in block 6, and the property of Mrs. Bell is located one block east on the northeast corner of block 7. These two blocks occupy the southeast corner of Barrett’s addition. This sewer seems to have been built in sections, beginning at the outlet east of Madison, and extended from time to time as the streets in this part of the addition were opened and worked, and the necessity of drainage ivas thereby accentuated. The sewer was constructed by the city at its own expense, and no part of it was ever assessed against the adjacent or abutting property. "Whether it was intended to serve any other purpose than to effect such drainage as might be necessary for the proper construction and use of the streets is not shown. There is evidence that some property owners in the vicinity have
In the proceedings now in question, the city has undertaken to cover Barrett’s addition with a comprehensive sewer system, in which a main has been laid along Acres street from near the western limit of the addition eastward about five blocks to a connection with the old sewer near Madison avenue, and the old sewer is, to this extent, utilized as an outlet for the new. From the main sewer just described, laterals have been extended north and south through the alleys of all the blocks of the addition, thus making each lot abut at the rear upon a line of sewer. At each lot a “Y” has been laid to facilitate the work of making sewer connections. The system is provided with thirty manholes and thirty-four catch-basins, distributed over the territory to be accommodated. The work having been completed, and notice given of proposed assessment of the cost so incurred upon the property of the addition, the several plaintiffs above named appeared before the council and protested against any part of such expense being assessed upon their property. Their objections, briefly stated, were: (1) That there was irregularity in the proceedings by which the improvement was ordered. (2) That the sewer, as constructed, discharges into an open run, with the result that a nusiance has been or will be erected, making it impossible to use the sewer for sanitary purposes. (3) That assessment cannot be lawfully made upon the property for a storm sewer, because the proceedings of the city council did not provide for such a sewer. (4) That the assessments against the property are in excess of the benefits conferred, and in excess of the amount which can be legally levied for that purpose. The city council overruled the objections
On the trial of the appeal, no effort appears to have been made to contest the regularity of the proceedings of the city council, and the entire attack upon the assessment was concentrated upon the proposition that, as to the several lots owned by the plaintiffs, there was no need of the new sewer; that said property was in no manner accommodated or increased in value therby; that said property and the immediate neighborhood thereof were already amply provided with drainage by the old sewer; and that the effect of the new system was or would be to create such a nuisance as would render said system of no value or benefit to the property. The trial court found for the plaitiffs, and canceled and set aside the assessments appealed from. Said decree is accompanied by no opinion or special findings; but we must presume that the conclusion was reached solely upon the merits of those objections in support of which evidence was offered. We shall therefore confine our own investigation and discussion within the same limits.
Nor is tbe alleged elevation of these lots above tbe general level a matter of decisive importance. A sewer system is intended, not only for tbe private convenience of tbe,lot owners, but for the comfort and safety of the public as well. It affords, not only a means of drainage from the