140 Iowa 218 | Iowa | 1908
— The plaintiff is the owner of two lots on each side of West Eighth street in the city of Des Moines, which by proper action of the city council has been caused to be paved for the distance of one block, between Vine and Cherry streets.- The cost of this improvement, amounting to $1,867.43, was assessed to the owners of abutting property on each side, including the plaintiff, in the proportion which the frontages of their respective lots bore to the entire frontage, save that plaintiff was relieved from any assessment on twenty feet of frontage on each of two opposite lots because in front of that portion of these two lots there was an old pavement which was' not disturbed. Five tracks of plaintiff’s railway extended across the street between its lots, and at each track crossing there is planking between the rails and on each side for the width of eight feet. These planked portions of the street were not included in estimating the expense of paving, but the total expense of the paving was assessed ratably on plaintiff’s lots in proportion to their
It is to be noticed, however, that the cost of the pavement is to be ascertained as a whole, and was so ascertained in making the assessment. One improvement may extend along the street for many blocks, and the cost of the whole may be apportioned to abutting property without ascertaining the actual expense of laying the pavement on each particular portion of the street in front of each particular lot. See Code, sections 810-825. The fact that the portions of street covered by the crossings of planks over plaintiff’s tracks were not, in fact, paved, reduced the total expense of the paving to be assessed to abutting property, but no provision is made for reducing the proportion of the cost to be paid by the lots in front of which such unpaved crossings exist. The planking at the crossings was done, no doubt, at plaintiff’s expense under the requirement of Code, section 2054, but this expense borne by the plaintiff was not by way of substitution for paving. Plaintiff would have been under obligation to construct such crossings had the street remained unpaved, and from the record we would infer that these crossings had been constructed and maintained by plaintiff prior to any steps being taken for the pavement of the street. Plaintiff is the owner of lots abutting on the improvement, and the fact that portions of these lots are covered by tracks which cross the streets does not furnish in itself any reason for assuming that plaintiff is not benefited by the entire improvement in proportion to the entire frontage of its lots upon such improvement.
benefits are not proportionate to the frontage, and that only in this event is the rule of assessments by benefits under Code Supp., section 792a, to be applied. We do not understand that this is the construction placed on these statutes in our cases. Since the adoption of the amendment requiring assessments to be proportionate to the benefits, we have held that the basis of the assessment is to be the proportionate benefits to the abutting lots, but that, in the absence of any other consideration affecting the benefits, the frontage may be properly taken into account as the basis for determining such benefits. Stutsman v. Burlington, 127 Iowa, 563; Minneapolis & St. L. R. Co. v. Lindquist, 119 Iowa, 144; Reed v. Cedar Rapids, 137 Iowa, 107.
Our attention is called to a case in the Supreme Court of New York — In re East 18th St., 75 Hun. 603 (27 N. Y. Supp. 591) — which might be in point if the question were as to whether the portions of plaintiff’s lots abutting on the twenty feet of old pavement should be taken into,account in assessing plaintiff for the new pavement. But there is no such question in this case, and we need not consider the applicability of the case cited under the plan of assessment provided for by our statutes. To the argument made for appellee, that, if it should subsequently be determined by the city council that the portions of the street now covered by plaintiff’s plank crossings should’ be paved, the expense of such pavement could only be assessed to plaintiff’s lots, it is sufficient to reply that we have no such question, and that we think it by no means clear that such additions to the pavement could be assessed to abutting property under our statutory provisions. The situation is simply this: A street improvement' of an aggregate cost properly estimated has been made, the expense of which may properly
The trial court should have affirmed the assessment, and its decree reducing the amount thereof to plaintiff is reversed.