198 Iowa 1103 | Iowa | 1924
— 1. Appellant is the owner, and has been since before the year 1916, of Lots 4 and 5 in Block 16, Platt’s Addition to Sac City. These two lots are located in the southwest corner of Block 16, and face south on Audubon Street, Lot
‘ ‘ Except wherein such curbing and guttering has heretofore been constructed thereon by authority of the city, approved by the city council, and such curbing and guttering is in good condition and acceptable to the city council.”
Appellant’s objections were overruled, except so far as the original resolution of necessity was modified by the above mentioned amendment. As thus amended, the resolution was passed, and the improvements ordered constructed. Contracts were made for the improvements ordered, including \he improvement of Audubon Street and Ninth Street, on which appellant’s lots abut. In laying the new improvement, the old curbing and guttering about appellant’s property were removed. After the city council had decided to pave these streets, and before any work was done under the contracts, an ordinance was passed, known as Ordinance No. 132.- This ordinance Avas intended to loAver the old grade oh the north side of Audubon Street, reducing same
The improvement on these streets was finished and accepted in August, 1920. Appellant filed objections to the proposed assessment for the costs of the improvement affecting his property. The objection made by appellant before the council in substance was that the improvement was not constructed on an established grade, and did not comply with the provisions of Code Section 792, and consequently that no assessment could be legally levied for such improvement against his abutting property. Counsel for appellant states his position, in substance, as follows: That the assessment for the pavement is invalid because the pavement was not laid at the established grade; that appellant had built curb and gutter on the established grade; that the pavement for which assessment is made was laid at a grade lower than the old established grade; that, after the paving had been done, the grade at which it had been laid was established to conform to the level of the pavement: and appellant insists that the proceedings are invalid, and that no assessment can be made against his property for said improvement because of the fact that the establishment of the grade ivas a condition precedent to
II. Code Section 792 furnishes the authority for assessment. It reads:
“Cities shall have power to improve any street, highway, avenue or alley by grading, parking, curbing, paving, graveling, • macadamizing and guttering the same or any part thereof, and to provide for the making and reconstruction of such street improvements, and to assess the costs on abutting property as provided in this chapter; but the construction of permanent parking, curbing, paving, graveling, macadamizing or guttering shall not be done until after the bed therefor shall have been graded, so that such improvement, when fully completed, will bring the street, highway, avenue or alley up to the established grade: provided that only so much of the cost of the removal of the earth and other material as lies between the subgrade and the established grade shall be assessed to abutting property.”
It will be observed that this section requires that the paving be laid at an established grade. Before any work was done on the improvements, it ivas attempted by ordinance to make change in the gradé by lowering it, and the improvement was laid on the grade attempted to be made by Ordinance No. 132. The work had been done — the improvement made — before it was discovered that there was a fatal defect in Ordinance No. 132, and Ordinance No. 134 was passed, establishing the grade at exactly the same level as attempted by the ineffectual Ordinance No. . 132, and on the exact grade that the improvement had been constructed. Of course, the city council had poAver to change the former grade, if there was one, and establish a different grade by ordinance. The consequence of altering an established grade resulting in injury to an abutting property owner is provided for by Code Section 785, which reads:
“When any city'or town shall have established the grade of*1107 any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury.”
III. It appears that there were some curbing and guttering, which had been installed some years before, removed when the new improvement was' made. Appellant complains that no allowance was made to him in the assessment, f°r destruction of his curb and gutter. We ku°w °f no statutory provision for giving credit f0r an assessment for the salvage value of the old curb and gutter. However, the record discloses no value.
Appellant also complains on this appeal that the assessment exceeds the statutory 25 per cent limit. No such objection on this ground was made before the council, and no record is presented on which to base such an objection.
IV. It appears that the council, by Ordinance No. 132, attempted to make a change in the former grade on Audubon Street along the south side of Block 16, where appellant’s two lots are located, by lowering the grade at a point about the middle of the south side of said block approximately 20 inches, the grade feathering out east and west from that point. This new grade affected appellant’s property thus: The grade was not changed at the southwest corner of his Lot 5, but from that point gradually sloped to about 16 inches below the old grade at the southeast corner of Lot 4. It transpired that said Ordinance No. 132 was defective, because it did not include the entire section of the old ordinance as amended. Ordinance 132 being relied upon, the pavement was laid in accordance therewith. When the defect was discovered, the council passed a new ordinance, No. 134, establishing the grade on Audubon Street in exact conformity with the improvement and the grade fixed in Ordinance No. 132. This was done before the assessment was made. The record is not clear as to whether the old ordinance, which was sought to be amended by Ordinance No. 132, and which was
The order entered by the court below is affirmed. — Affirmed.