City of Ottawa v. Barney

| Kan. | Jul 15, 1872

The opinion of the court was delivered by

Brewer, J.:

The city council of Ottawa, a city of the second class, pursuing the proper steps, caused one of its streets to be macadamized, curbed and guttered, and thereafter attempted to collect the cost of such improvement from the property adjacent. Second street, the street improved, runs along the end of certain blocks and parallel with the lots therein, so that only the two end lots in each block touch the street. The city council holding that only the lots which touched and had frontage on the street were chargeable with the cost of the improvement, made the assessment accordingly. The defendants in error, owners of lots having such frontage, believing that all the lots to the center of each block abutting on the improvement were liable, brought their action of injunction to restrain the collection of the entire assessment from their lots. Which was right? The statute controlling reads as follows: “For piacadámizing, the assessments shall be made on all lots and pieces of ground to the center of the block extending along the street or avenue* the distance improved or to be improved, according to the assessed value of the lots and pieces of ground,” etc. Laws of 1871, p. 149, §16, clause 3. Counsel for plaintiff in error thus state their claim:

“Now, the contention of the defendants in error js, that the wordsj5 ‘extending along the street or avenue the distance improved or to be improved/ relate to ‘block/ while that of the plaintiffs in error is that they refer to ‘lots and pieces of ground/ The statute, we maintain, is to be understood as though it ran thus: ‘ The assessments shall be made to the center of the' block, on all lots and pieces of ground ' extending/ etc. That is to say, that in case any lot or piece of ground abutting on the street improved extends back into the block beyond its center-line, the assessments shall be made according to the value of only so much of such lot or. piece of ground as lies between the center-line and Such street — it being, no doubt, the theory of the law, that all that part of the property lying further back from the street than the.center-line of the block cannot be specially benefited by the improvement, or that when it runs 'clear ¿cross the block it ought to be assessed, if at all, only for such improvements as may be made at the other end.”

If the statute ran, as the counsel say it should be understood, it would doubtless carry the meaning they claim. But the trouble is, it does not so run, but an entirely different way. The words, “extending along the street or avenue the distance improved or to be improved,” form an adjective-clause which modifies obviously the adjacent noun. It is a general rule of construction that an adjective or an adjective-clause qualifies the nearer rather than the more remote substantive; and though this rule is often disregarded, yet when there is nothing else to decide, this will determine which of two nouns is the one qualified ' and limited. But we need not rest upon this rule of construction alone. A block is defined by Webster as “a square or portion of a city inclosed by streets, whether occupied by buildings or composed of vacant lots.” It is a portion of ground surrounded by streets. Taxing to the center of the block for thq^improvement of the surrounding streets makes each portion bear its proper share of the total burden. Otherwise the central lots will bear only a part of the burden of the improvements in the front of the block, while the end lots will bear an equal share of this and the whole burden of more on the side of the block. This would be evidently unfair unless the central lots received no benefit from the improvements on the side. But the fact is the whole block receives benefit from the improvements made anywhere around it. Especially is this true of the “squares and areas formed by the crossing of streets,” the improvement of which benefits the front of the block as much as the side; and yet the cost of this is collected in the same way. The end lots may receive more benefit from improvements on the side, but being valued more highly will pay more for those as well as for the improvements in front. There is a certain sort of relationship between streets and blocks, whose existence we all appreciate, no matter how illy it may be in fact recognized. The streets are for the service and use of the blocks; and the idea is, that there should be such an adjustment of their numbers and size that each portion of the block should receive all needful service from the streets. Of course, the use to which the blocks are put, whether for residences, stores, or factories, may change the measure of adjustment; but still the fact of the relationship remains unaffected. With that fact existing then, that so much and only so much of ground is included in the block as can be properly served by the streets, it would seem but a natural converse that the cost of improving the streets should be cast on the block. Such we think is the rule the legislature ought to establish — such, the ordinary laws of construction show, they haye established. So far as regards the constitutionality of such a rule we need only refer to the case of Hines v. City of Leavenworth, 3 Kas., 203, 204. In reference therefore to the main question the views of this court coincide with those of the defendants in error and the learned judge of the district court.

But upon another ground the judgment is erroneous. The petition shows that the lots of defendants in error were subject to assessment for this improvement. It alleges that the assessment-actually made upon one lot was $184.80, while a legal assessment would not have exceeded fifty dollars, and that a similar proposition existed as to the other lots. It nowhere alleges payment or tender of the amount due under such legal assessment. He who seeks equity, must do equity. The plaintiffs below admit they owe something, but deny that they owe all that has been assessed. Before injunction will lie under these circumstances they must pay or tender what they owe. Gulf Rld. Co. v. Morris, 7 Kan., 210" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/missouri-river-fort-scott--gulf-r-r-v-morris-7882636?utm_source=webapp" opinion_id="7882636">7 Kas., 210; Comm’rs of Leavenworth v. Lang, 8 Kan., 284" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/commissioners-of-leavenworth-co-v-lang-7882798?utm_source=webapp" opinion_id="7882798">8 Kas., 284; Merrill v. Humphrey, Am. Law Reg., April 1872, p. 208.

The judgment of the district court will be reversed, and the case remanded with instructions to sustain the demurrer.

All the Justices concurring. ■