172 Iowa 444 | Iowa | 1915
The city council of Centerville, having caused certain of its streets to be paved, assessed the cost of the improvement upon the abutting property, including certain property belonging to the plaintiff. When the council met for the purpose of hearing objections to the assessments,
1. That, as proposition of law, no special benefits accrue to a railway company from the paving of a street abutting on or adjoining its right of way; and
2. That, as a proposition of fact, plaintiff’s property was in no manner benefited by the paving of South Eighteenth Street of the defendant city.
The objections were overruled by the city council, and plaintiff appealed to the district court. The assessment complained of was levied in two items, one upon certain city lots owned by the plaintiff, and the other upon the railway yard and right of way abutting upon the street. On the trial below, the parties agreed to a reduction of the amount levied upon the city lots, and that item need not be further considered. Concerning the other item, the court found for the company, sustained its objection to the assessment laid upon its yards or right of way, and the defendant appeals.
Whether, in the absence of any statute therefor, a city may impose a special assessment upon a railroad right of way for the cost of street improvements is a question upon which the courts of the several states have not been agreed. That some have held to the full extent of the appellee’s contention in this case may be conceded. It may also be conceded that a majority of this court, at one time, approved the doctrine of .those precedents. (See Chicago, R. I. & P. R. Co. v. Ottumwa, 112 Iowa 300, 306.) But the soundness or unsoundness of that theory is no longer of moment in this state; for, by statute of more recent enactment, it has been expressly provided that the right of way of any railroad company fronting or abutting upon a street of any city or town shall be subject to special assessment for street improvements, and that such assessment shall constitute a debt of the company, recoverable in an action brought for that purpose. Code Sup. 1907, See. 791-i.
“The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land — indeed whether it is a benefit at all — is a matter of forecast and estimate. In its general aspects, at least, it is peculiarly a thing to be decided by those who make the law. ”
Further speaking to the point upon which the appellee here relies, — that, because the land is occupied for railroad purposes and presumably will continue to be so occupied, the benefit, if any, which the land might otherwise derive from the improvement affords no ground for assessing against it any part of the cost, — the court says:
*450 “That, apart from the specific use to which the land is devoted ... in a good-sized city [it] generally will get a benefit .from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which ... a legislature is warranted in adopting. But, if so, we are of the opinion that the legislature is warranted in going one step further and saying that, on the question of benefit or no benefit, the land shall be considered simply in its genei’al relations, and apart from its particular use. ... On the question of benefits, the present use is simply a prognostic, and the plea a prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that, the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues; for no one can say that changes might not make a station desirable at this point, in which case the advantages of a paved street could not be denied. ’ ’
Upon no other theory can we justify the familiar decisions by which lands of churches and schools, which are expressly exempted'from the burdens of general taxation, are still held liable, for the payment of special assessments. A church or school building is ordinarily a permanent structure. It is not held for profit, and any increase in the market value of the ground upon which it stands is, for the time being, a merely nominal asset, which brings to its owner no increased income or- other tangible benefit.. For all practical purposes, in most instances, the present use to which the property is dedicated may be enjoyed just as advantageously without the pavement as with it; and, if the appellee’s theory of the law is correct, no assessment should be levied against it. But the contrary rule is too well established to be now questioned.
“If railroad tracks are taxable for general purposes, it is difficult to perceive why they should not be subject also to special taxes or assessments. The company, to advance its own interests, has seen fit to appropriate to- its use ground within the corporate limits of the. city of Toledo, and over which that city had the power of making assessments to defray the expense of local improvements, and why should not the company be held to have taken it cum, onere? A citizen would scarcely claim exemption because he had devoted his lot to uses which the improvement could not in any way advance, and we see no good reason why a railroad company should be permitted to do so.’’ Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159, 164.
“Such legislation is in accord with the result of many well-considered cases, and is in harmony with the rule approved by the Supreme Court of the United States that, on the question of benefits or no benefits, the land shall be considered simply in its general l’elations and apart from its particular use.”
The record disclosing no ground upon which the vacation of the assessment can be sustained, the decree of the district court is reversed and the cause remanded for a decree in accordance with this opinion. — Reversed.
SUPPLEMENTAL OPINION.
In a petition for rehearing, the plaintiff, among other things, calls our attention to the fact that defendant’s counsel in argument concedes that a fraction of the expense of paving a certain street intersection was Improperly assessed against plaintiff’s right of way, and that the assessment should be reduced by the amount of such excess, which is said to be about $115.00. This item received only very meager mention in the record and argument, and we failed to take it into account in announcing our decision. The opinion heretofore filed will, therefore, be modified by reducing the special assessment upon plaintiff’s right of way from $3,554.71 to $3,439.71, as of the date when the levy was made. The taxation of costs will also be modified by requiring the appellant to pay five dollars of the taxed costs of printing. We find no reason for otherwise changing the views expressed by us upon the original submission and, with the modification