88 Iowa 291 | Iowa | 1893
On the eleventh day of September, 1885, the city council of the plaintiff ordered that First street (known in the record as “Water street”) be paved from Linn street to a point one hundred and twenty feet west of Ash street. The street ordered to be paved was one hundred feet in width. On the seventeenth day of September a notice was served upon the defendant to proceed to do the paving required by the order the width of fifty feet in front of its property which abutted on the line of the street, and to have the work completed on or before the seventeenth day of
At the January term, in the year 1888, of the district court of Muscatine county, a judgment was rendered in favor of defendant, which was reversed by this court on appeal. See 79 Iowa, 645. After the cause was remanded, another trial was had, which resulted in a judgment in favor of the plaintiff for the entire cost of paving done opposite blocks 5, 6, 7 and 8. That portion of the paving is adjacent to the land concerning which it was held on the former appeal that assessments on account thereof should be paid' by the defendant. The amount for which judgment was rendered is four thousand and ninety-six dollars, with interest thereon from December 21, 1885, at the rate of six per cent, per annum, and of that the defendant complains. The cost of paving done west of a point one hundred and twenty-six feet west of Broadway was one thousand, seven hundred and forty-six dollars and thirty cents, and the plaintiff complains because that amount was not included in the judgment, and for the further reason that interest on the amount of the judgment, at the rate of ten per cent, per annum, and a penalty of five per cent, were not allowed. No question in regard to the grading is involved in this appeal.
This action is brought under the provisions of sections 478 and 479 of the Code. The burden is upon the plaintiff to show the cost of paving for which the defendant is liable, and the property against which it is chargeable. The paving done was wholly south of the center of Water street, and the defendant contends that it can be compelled to pay the cost of but one-half of that portion in front of its property, while the plaintiff contends that the entire cost of such portion is chargeable to the property, and, therefore, that the defendant is liable for its payment. In Morrison v. Hershire, 32 Iowa, 276, it was decided that a city has power to pave less than the full width of a street, and assessments for a roadway eighteen feet in width were held to be valid. In that case it was said that the power of a city to do the work does not depend upon the benefits to be derived by property owners; that the work is done for the public, and assessments for its payment are levied upon the abutting lots, not because
We are not required to determine whether facts may exist which would authorize a city or town to tax the cost of paving a part of the street to the owners of property on one side. The special charter of Muscatine confers upon the city power to cause its streets to be paved, and to require owners of adjacent lots to pave one-half in width of the street contiguous to their respective lots. Section 466 of the Code, which section 479 makes applicable to cities acting under special charters, gives to cities and towns power to pave streets and make assessments therefor on lots fronting on such
V. The conclusions we have announced dispose-of all questions which we are required to determine at this time. The defendant consents that judgment be-entered against it for one-half of the cost of paving in front of its property. If the plaintiff shall, within sixty days from the date of filing of this opinion, remit one-half of the amount of its recovery, judgment will be-entered in this court for the remainder, which is two thousand and forty-eight dollars, with interest thereon at six per cent, per annum from the twenty-first day of December, 1885, and the judgment of the district court will stand affirmed as so modified. If such a remittitur is not entered, the judgment of the district court will stand, on the appeal of the plaintiff, affirmed, and on appeal of the defendant, reversed.