109 Neb. 739 | Neb. | 1923
The city of Albion created certain paving districts and assessed the sum of $8,258.31 as special benefits against .certain property of the Chicago & Northwestern Railway Company within paving district No. 1. From the order of the board of equalization levying such special assessment, the railway company prosecuted error to the district court, which court sustained the assessment. From this judgnieiit the railway company appeals.'
The material allegation of the petition in error is that the only facts considered by the city council and the only basis .used in making the levy. was the cost of the-paving, regardless of any other consideration.
Section 4283, Comp. St. 1922, confers the power to pave upon the" city council, and the method of assessment is prescribed in section 4286.
The record shows that a notice was published to all property owners in the districts that the city council would sit in special session on October 21, 1918, at 8
The testimony on behalf of the railway company is to the effect that, from the point where the railway crosses Main street to the end of the pavement near the milling company property, the ground on both sides of the paving is unplatted and is about three feet below the level of the street, and has not been used by the railway company for many years, nor does it derive any' benefit from the same; that the land would make about four industrial lots 80 by 160 on one side, and 80 by 120 on the other, which would be worth about $1,000-each; that other lots assessed on Main street are worth as much as $7,000 to $10,000 each.
The city engineer testified that he computed the schedule of assessment according to a zoning system with six zones, so as to provide enough money to pay for the improvement. It is not contended by the appellant that the assessment was not properly made if such a basis of assessment is justifiable. That special assessments can only be based upon special benefits to the property assessed, and that such an assessment beyond the special benefits conferred would be a taking-of private property for public use without just compensation, as appellant urges, is settled law in this; state. Schneider v. Plum, 86 Neb. 129, and other cases cited. In that case a village board, acting under the
Of course, without a finding of benefits the assessment was unauthorized. But, in the case at bar, the boárd specifically found the benefits. It is true that the special benefits to all the property in the district has been found to equal the cost of the paving, but this fact alone is not sufficient to avoid the assessment. The benefits derived, under like conditions, from the paving of a street are usually under a zoning system, in proportion to the frontage and area of the lot assessed, and so with respect to the cost of paving. Unless there .are circumstances which show that the special benefits found are excessive and unreasonable in amount, all things being considered, a finding by the board which in substance is based on the idea that the paving has added to the value of the lot a sum equal to the proportionate cost of the improvement is not so unreasonable as to justify setting the assessment aside for that reason alone. O’Reilley v. City of Kingston,
Appellant has pointed out that the amount of special benefits assessed against each lot in the paving district has little or no relation to the actual value of the lot. This is immaterial.' The value depends upon other factors. A lot in a city with a ten-story building on it may be worth immensely more than a vacant lot on the same street, and -yet the special benefit to, and enhancement of value of, each' lot be the same. There seems to be little use for the valuation required by the statute unless it means that the board shall ascertain the value of the property before and its value after the improvement, and assess the difference as the special benefit. But the statute does not so require in direct terms and any method of reaching a substantially just appraisment of the special benefits may be" supported. Norwood v.
It is next contended that there can be no special assessment against a railroad right of way and station ground for local improvements except upon the basis of increased value of the land for railroad purposes. A number of cases are cited- to sustain this proposition, but a larger nuifibeir can. be found -in which the courts take a contrary view, and uphold assessments on the same basis as other property is assessed. 4 Dillon, Municipal Corporations (5th ed.) sec. 1451, and note.
The paving extends in front of the passenger station and. depot grounds of the appellant, and the street extends 'beyond the crossing to industries near the tracks, but it seems to appear from the plat in evidence that most of the-property in dispute, was originally -included within a city block. Under, somewhat similar facts, the supreme court of Missouri held that the fact that a railway is a highway, and the railroad corporation is a common carrier, does not exempt land used by a' railroad for depot and yard purposes from special taxes for street improvements. City of Nevada v. Eddy, 123 Mo. 549, 561. Other courts, whose' decisions are collected in Dillon, as above cited, 'áre* to the same" effect.'' The policy of this state has been to make private property-abutting .upon or adjacexit to a public improvement pay by . special assessment the amount which it has been specially benefited, and in the like situation of public property, such as that of counties, school .districts, and quasi-municipál corporations, whex^e ,.city authorities , have no power to enforce the, collection ,of the assessment by. sale of the- property,,1he.legislature, pr,oyj4ed in 1909 that the payment may .b.e enforced by suit. and. .judgment. Comp. S;t., .1922, . sec.. ,4283. . .Chiirchcs,,,and .charitable institutions which are exempt from, general taxation, are held liable to pay such special' assessments. We see
We find no error in the judgment of the district court.
Affirmed.