Dunker v. City of Des Moines, 156 Iowa 292

Dunker v. City of Des Moines

156 Iowa 292 | Iowa | 1912

Sherwin, J.

The city council of the city of Des Moines entered into a contract with the defendant J. W. Turner Improvement Company for the construction of a sewer of some fifteen miles in length in the eastern part of the city. The plaintiff herein, is the owner of property abutting the proposed improvement, and brought this suit to enjoin the improvement company from constructing the sewer and to enjoin the city of Des Moines from assessing his property therefor, and from issuing warrants on the city sewer fund to pay for said improvement.

*294i Municipal pubikRlm-°NS: [esoiuTkífof necessity. *293The appellant’s first contention is that the contract entered into with the improvement company is invalid, be*294cause the resolution of necessity does not state wbat adjacent property is included in the sewer district for assessment. Section 810 of the Code provides that the resolution of necesgjty shall state “whether abutting property will be assessed . . . and what adjacent property is proposed to be assessed therefor.” All that is said in the resolution of necessity as to what adjacent property will be assessed for the improvement is the following: “The cost of constructing said sewer to be assessed against property abutting thereon and against adjacent property' in accordance with the law governing the same.” The statute requires the resolution of necessity to stat,e what adjacent property is proposed to be assessed for the sewer, and it is very evident that the resolution nnder consideration did not so state. The purpose of the resolution is to advise the owners of property of the proposed improvement, so that those whose party will be liable to assessment therefor may appear before the council and make objection thereto, if they so desire. This is manifest from the statute itself, for it expressly says “at which time the owners of the property subject to assessment may ’appear and make objection to the contemplated -improvement or sewer and the passage of s’aid proposed resolution.” “Abutting property” is easily determined; but, unless the proposed resolution points out what adjacent property will be included in the proposed assessment, neither the owners of abutting property, nor the owners-of property that may subsequently be determined to be adjacent to the sewer, can tell what area will be assessed for the improvement. . The word “adjacent,” as used in the section, does not of itself clearly determine or locate the land that may be finally brought within the assessment district because of the benefit it will receive from the sewer. The word “adjacent” is, at least, somewhat indefinite. Ordinarily, it means “to lie near, close, or contiguous.” Webster. Even in its strictest *295sense it means no more than lying near, close, or contiguous, but not actually touching. “There are degrees of nearness, and, when you want to express the idea that a thing is immediately adjacent, you have to say so.” Hanifen v. Armitage (C. C.) 117 Fed. 845; Hennessey v. County, 99 Wis. 129 (74 N. W. 983). It does not at all times mean “adjoining” or “abutting,” but it is many times so used. Wormley v. Wright Co., 108 Iowa, 232. The word clearly does not mean “adjoining” or “abutting” in the statute, under consideration, for the same section makes the proper distinction between “adjacent” and “adjoining” in definite language. It is left, then, for the city council to determine what property shall be included as “adjacent” to the - sewer for the purposes of assessment, and we think this should be done and the property so designated in the proposed resolution of necessity as to inform property owners, with reasonable certainty, of the lands that will be included in the sewer district for assessment. It may pften happen that property which is clearly geographically adjacent to. a proposed sewer is not subject to assessment for that particular sewer, and, as such matters must be determined primarily by the council, we think it should be done before the resolution of necessity is published, and thus give all interested parties proper information so that they may determine whether they want to object to the sewer, or to the passage of the proposed resolution.

The appellees contend that the provisions of sections 819, 820, 821 and 823 negative our construction of section 810. But we are unable to see any conflict between the sections under our construction of 810. Sections 819 and 820 do no more than -to direct how the cost of a sewer may be paid, and the tax that may be placed on abutting and adjacent property. Section 821 provides for a plat and schedule showing -the streets, avenues, highways, alleys, and the separate lots or parcels of ground, subject to assess*296ment for the improvement, and the, names of the owners thereof, and the amount to be assessed against each lot or parcel of ground. This requirement is evidently supplemental to the requirement of section 810, for the purpose of advising interested parties of the streets and alleys affected by the improvement, and of the exact amount assessed against each lot or parcel of ground in the sewer district. Otherwise, the property owners would be in no position to intelligently object to their individual assessments, nor would the council be in a better position in determining what each parcel of ground should be assessed. And, finally, section 823 does no more than to provide an opportunity to the property owner to be heard in opposition to' the assessment and to the prior proceedings.

II. We are of the opinion that the resolution of necessity was sufficiently specific as to method of construction. Nixon v. Burlington, 141 Iowa, 323.

III. We also think the terms of payment were stated with sufficient clearness, and that competition among bidders was not interfered with by any of the council’s proceedings.

2. same: sewertK>n asretomp" outiet. IV. No outlet has been provided for this contemplated sewer, and because thereof appellant says that the contract is invalid. It is to be presumed that the city will .at the proper time provide such an outlet as will make the sewer serviceable. The construction of fifteen miles of sewer, with no means provided for using any part of the system, would be robbing the property owners, and the courts would soon compel action that would make the sewer useful and effective, the objection on this ground can not be sustained. See Bell v. City of Burlington, 154 Iowa, 607; Pages & Jones on Taxation by Assessment, section 401; Ryder’s Estate v. Alton, 175 Ill. 91 (51 N. E. 821); South Highland Co. v. Kansas City, 172 Mo. 523 (72 S. W. 944); Maywood Co. v. Village of Maywood, 140 Ill. 216 (29 N. E. 701); *297Hamilton on Special Assessments, section 414, and cases cited.

Nor the reason stated in the first division of this opinion, the judgment of the trial court is reversed, 'and the case is remanded for proceedings not inconsistent with this opinion.- — Reversed and remanded.