112 Iowa 300 | Iowa | 1900
Lead Opinion
With these elementary propositions settled, we now turn to our statute, and find that at the time the assessment was levied it authorized cities to pave and curb any highway or alley therein, and to levy a special tax on the “lots and parcels of land fronting on the highway” to pay the expense of such improvement. Code 1873, section 466. See, also, Acts Twenty-third General Assembly chapter 14. sections 1Ó, 11, and Acts Twenty-fifth General Assembly chapter 7. The ordinance passed by the defendant city in virtue of the power thus conferred, so far as material, reads as follows: “The proportion of the cost chargeable to the property owners for such improvements shall be • ascertained and assessed by the city council against each owner and lot or parcel of land abutting, fronting upon, or adjacent to said improvement in proportion to the number of front feet. The city engineer shall also report to the council the number of front feet fronting on, or abutting on, or adjacent to such improvement, together with the names of the owners, . and the number of front-feet owned by each as nearly as can be ascertained, and the amount chargeable to each separate lot or parcel of ground.” This was the power conferred by the legislature, and made effective by ordinance ; and it was to charge the expense against each owner, and lot oi’. parcel of land abutting on the improvement, with the cost thereof. Is a, railroad right of way acquired by condemnation proceedings either a lot or parcel of land subject to
III. Again, it is said that no benefits resulted to the right of way, or to the corporation owning or occupying the same, and that for this reason the assessment was invalid. If that were the only question in the case, we would be inclined to hold with appellants’ contention that, as there was no benefit whatsoever, the assessment was, for that reason alone, invalid. There are, of course, some objections to this conclusion, and it is best perhaps, that we express no decided conviction on the subject, for it seems to be held by courts of high authority that the legislature has power to authorize the assessment of railway rights of way for local improvements. In re County Com'rs of Hampshire County, 143 Mass. 424 (9 N. E. Rep. 756). That question is also left open for further consideration when it properly arises.
• YI. The other points argued need not be considered, as they are not important. There should be a decree enjoining the collection of the tax from the railroad companies, and the cause will be remanded for that purpose — Reversed. •
Dissenting Opinion
(dissenting).— -The rule that the owner of the .fee is liable for a special assessment levied against an abutting railway right of -way across his land is so inequitable that I cannot conceive such result to have been intended by the general assembly.- It puts the burden of paying for the improvement on one who has no. beneficial interest in the real ■estate, leaving the present possessor, whose right in the property is practically perpetual, exempt from- any liability therefor. Section 1344, Code 1897, which is but a roenactment of a previous statute, provides: “No real estate used by railway corporations for roadbeds shall be included in the assessment to individuals of the adjacent property,, but all such real estate shall be the property of the companies, for the purpose of taxation.” While this section is found in the chapter relating to ordinary taxes, it announces, as a general principle, that railways are the owners of the land in their rights of way for purposes of taxation. Although the general power to levy taxes does not ■confer the right to impose special assessments for local improvements, yet a general definition of who shall be
II. With reference to the personal judgment against plaintiff the majority holds the trial court was without authority to render it, and the case of German State Bank v. Northwestern Water & Light Co., 104 Iowa, 717, together-with two other cases from this court, are relied upon to sustain the position. The German State Bank Case was quite different in its facts from the one at bar. There one person promised another, to whom he had sold stock in a corporation, to protect the stock in the purchaser’s hands against debts owed by the -corporation to third parties. In the case of Davis v. Waterworks Co., 54 Iowa, 59, also cited, the third person, Avhile benefited by the promise, had no direct interest in it. This is an.important distinction.. See 7 Am. & Eng. Ene. Lar?, 107. In the third case— Messenger v. Votaw — there was a sale of real estate subject to a mortgage upon which the grantee agreed to pay'interest,, he having received money therefor. The right of the creditor to sue on the agreement, while spoken of, was not- in the