The particular fact in the case which has given the litigants their greatest trouble, and to which their briefs have been very largely directed, is that, in fixing the amount of the assessment against plaintiff’s lands, account was taken, as alleged, of benefit accrued to land outside of the district. It was deemed by the city council that the plaintiff received benefit to the extent of $37.10 an acre on the north 57 acres of his farm, and the computation was made, as alleged, upon that basis. Only 39 acres, however, of the plaintiff’s farm were included within the district as established. That is to say, the district as established was made to include the north 57 acres of the northwest quarter of Section 10. Of this area so included, Coy owned 5 acres, and Roberts owned approximately 13 acres. The plaintiff owned the remaining 39 acres, and this was the north 39 acres of his farm. The sewer as constructed cut plaintiff’s‘farm on a line outside of and further south than the north 39 acres, but within the north 57 acres. In explanation of this discrepancy, the defendant contends that there was a ■ mistake in the description of plaintiff’s land, made in the resolution of necessity, and that such mistake was carried through the successive proceedings of establishment; that the real intent of the city council was to include within the drainage district the north 57-acres, of plaintiff’s'farm, and that all of its proceedings were had on that theory, and that the plaintiff knew it and acquiesced in it; that the plaintiff waived the irregularity, by failing to object thereto'; and further, that
For the plaintiff, it is contended that this discrepancy was not discovered by him until the case came into the district court; that he did not know, nor did the record in any manner indicate, that the sum total charged against him was arrived at by considering benefits to other acres of his land than those included within the district. In the district court, the plaintiff filed amendment to his petition, which was, in form, an amendment to his objections, whereby, he challenged the jurisdiction of the city council to take account of benefits to acres situated outside the boundaries of the district. A motion by defendant to strike this amendment, on the ground that the objection therein made was not made before the city council, was overruled; and this is one of the grounds of reversal laid by defendant.
Counsel for both sides have filed very extensive and very able briefs on the question of jurisdiction of the city council, and whether the nature of the jurisdiction involved was such that it could not be conferred by consent of the adverse party, and furthermore, whether the irregularities of the jurisdictional procedure were such as could or could not be waived. We shall not follow counsel far into that field.
We may say, briefly and broadly, that it is ordinarily true that, where a tribunal can, by proper procedure, acquire full jurisdiction of the matter in litigation, irregularities in such jurisdictional procedure may be waived by the party in interest adversely affected, provided such waiver or consent is had before judgment. And this is so both as to jurisdiction in personam and jurisdiction m rem.
Whatever the lack of jurisdiction, therefore, in this case, it was not a want of jurisdiction of subject-matter. It was also competent- for plaintiff to waive -and consent, if -waive and consent he did.
' II. We reach the conclusion, also, that the question of jurisdiction is not a controlling question -in the case. The trial court sustained the jurisdiction of the defendant council to assess the benefits to the 39 acres included within the district. From this finding, the plaintiff has not appealed. The defendant council does not challenge the jurisdiction.The real question in the case is not whether the city council had jurisdiction to assess lands outside of the drainage district, but whether its assessment made on the land within the district is excessive. It does not affirmatively appear lipón the record of the city council that benefits to other lands were included within the assessment. It is proper that we look into the reasons and data upon which the council fixed iipon the sum total of benefits to be assessed againsi the plaintiff.' If it estimated benefits upon a- false or illegal basis, such basis cannot be sustained; and this is so whether it acted with jurisdiction or without" it. The first question, then, is, What land was, in fact, included within the district established? 'All the proceedings of the city-council in the matter of establishment contained the specific description which we have already set forth. There is no ambiguity in it.' If the intent of the city council was 'otherwise, such intent was never expressed-upon its-records: 11
On the question of waiver in the form of objections, it is to be noted further that there was nothing in the form of the entry of the assessment to indicate that it purported to include benefits accrued to iands outside of the district. And this was so, even after the lump assessment was divided and apportioned to the lands of plaintiff in each of the two separate 40-acre subdivisions. The method of making this assessment of record was to enter the figures upon the plat and schedule prepared by the engineer and filed by the commission, as follows:
“NW % of the NW 14 Sec. 10-83-24 except 5 acres in the NW corner, $1298.50.”
“W 22 acres NE % NW *4 Sec. 10-83-24,, $816.20.”
Appellant contends that such entries showed the consideration of benefits to the entire 35 acres owned by plaintiff in the NW % NW %, and to the entire 22 acres owned by him in the NE 14, NW This, however, is an erroneous assumption. The plaintiff did own 35 acres in the N W % NW 14. If only one acre thereof had been benefited by the improvement, the amount assessed for such benefit would be assessed, under our statute, against all the land owned by the plaintiff in that 40-acre subdivision. The same would be true as .to the land owned in the other 40. The assessment, therefore, was appropriately made, in each case, upon the 40-acre subdivision, so far as it was owned by
If, therefore, it had been otherwise incumbent upon the plaintiff to be more specific in his objections, and to have challenged the particular basis of computation adopted by the city council in its assessment, there was nothing in the form of the assessment to invite such specification.
In a word, the amount fixed by the city council is reduced, not because it included benefit to outside land, but because the evidence does not sustain it as to inside land.
“Ames, Iowa, September 1, 1914.
“We, the undersigned property owners, do hereby agree with the city of Ames, Iowa, that the said city of Ames, Iowa, may construct á sanitary sewer and storm sewer in, upon, and across our property, in accordance with the plans and specifications to be drawn by the city engineer of said city. That the sewers shall be constructed of 18-inch pipe commencing at the intersection of Lincoln Way and Beech Avenue, and the intersection of Greeley Street and Beech Avenue, and converging at a point east on the farm land of Wm. McLain, and. from that point east to be constructed of 24-inch pipe to place of outlet. That we waive all damages in the construction of the said sewers across our premises. That we also waive the passing of a resolution of necessity and the publication of notice thereof; and we hereby consent that without such proceedings the said city of Ames may construct and contract for the main outlet for storm and for sanitary sewers for Subdistrict No. 2 of*274 District Ho. 3, College Heights Addition, and other lands Ames, Iowa.
“And we hereby agree to pay our just and proportionate cost and benefit in the said improvement.
“[Signed] W. D. McLain.”
By the foregoing instrument, the city council obtained plaintiff’s consent to lay the sewers across his land without claim from Mm for damages. He also bound himself therein to pay Ms proportionate amount of costs. It is, perhaps, true that, if this instrument had fixed the specific amount that plaintiff was to pay, he would be bound thereby, regardless of irregularities in the proceedings establishing the district. Such is not the situation. The amount which he should pay as Ms proportionate cost was left for future determination. The proportionate amount Avhich plaintiff should pay could not be determined without determining also the proportionate, amount which other beneficiaries should pay. These other property OAvners, many of them at least, had not bound themselves by any instrument. An establishment of a district was, therefore, necessary, before the proportionate amount which even the plaintiff should pay could be estimated. This was the course folloAved by the defendant.
. While this instrument may be deemed effective to protect the city in the location of its seAver across the plaintiff’s land, regardless of the boundaries of the district, we can see nothing in it Avhich can be deemed to operate as an estoppel upon the plaintiff to question the amount fixed by the council as his “just and proportionate” share of the cost and benefit. But it is argued that it does estop him from contesting the amount of the benefits accrued to his land outside of the district. The argument is that he Avould have been liable under his contract for his share of the benefits accrued to his land, even if no district at all had been established. Assuming this contention to be theoretically correct, then the city council could not have been the tribunal which could adjudge such proportionate cost and benefit. Construing the contract as the defendant does, and
hypothesis now, he Avould not entertain it Avhen he insisted
It is true that the area of the district was very small, and that the cost of the drain ivas quite appalling. It may be true that it was a greater cost than should have been imposed upon so small an area; but this was a question set for consideration before the establishment of the district. Plaintiff made no objection to it then, though he had full notice of what was proposed. Not only did he fail to object, but he had already signed the instrument Exhibit A. On that question, therefore, plaintiff liad his day, and was content. It is not involved in this appeal. For the purpose of this appeal, it must be assumed that the benefits to the district were equal to the cost. The problem pre
We do not overlook the point made in behalf of plaintiff concerning Exhibit A, that its conditions were not observed by the city, and, therefore, that it should not weigh against the plaintiff. The point made is that, under Exhibit A, the sewer was to commence at the intersections of Lincoln Way and Beech Avenue and Greeley Street; whereas it was constructed to commence at points much higher up. We do not so read the instrument. The particular sentence referred to is the following:
“That the sewers shall be constructed of 18-inch pipe commencing at the intersection of Lincoln Way and Beech Avenue and the intersection of Greeley Street and Beech Avenue, and converging at a point east on the farm land of Wm. McLain, and from that point east to be constructed of 24-inch pipe to place of outlet.”
The mandate of this sentence is that certain sections of the sewer should be “constructed of 18-inch pipe,” and that another section thereof should be “constructed of 24-inch pipe.” The participial phrase, “commencing at the intersection of Lincoln Way,” etc., is descriptive of the section which should be constructed of 18-inch pipe. There is no claim that the sections or branches were not constructed of 18-incli pipe from the respective intersections of Lincoln Way and Greeley Street with Beech Avenue to the converging point; nor is there any claim that the section from the converging point to the outlet was not constructed of 24-inch pipe. If the branches were, in fact, extended farther up than the particular intersections referred to, there, is nothing in the instrument to forbid it.
Upon the whole case, we reach the conclusion that the assessment of the plaintiff must be fixed by such sum in dollars as equals the product of 39 multiplied by $37.10. This sum should be apportioned on the land owned by plaintiff, as betweén the two 40-acre subdivisions. To this extent, the judgment of the district court will be modified, and in all other respects affirmed. — Modified and affirmed.