171 Iowa 143 | Iowa | 1915
The action was commenced for an injunction. The prayer of plaintiff’s petition is for a judgment and decree restraining and enjoining the defendants, or their successors in office, from selling or advertising for sale the land or any portion thereof, or collecting any portion of the tax, for any city purpose ; that that portion of the tax be annulled and cancelled, and that any apparent lien upon the land be cancelled and •removed; also that the auditor and his successor in office be enjoined from including in any tax levy against the land, or entering in the tax list for future years, any levy made for city purposes on said land so long as the same is used for agricultural and horticultural purposes. An injunction was granted in the final decree. Section 4101, Code, provides that an appeal may also be taken to the Supreme' Court from: “(3) An order which grants or refuses, . . . dissolves or refuses to dissolve, an injunction,” etc. The motion to dismiss is overruled.
Plaintiff’s property consists of about thirty-eight acres in the west part of the city. The land was not embraced
Appellant claims that the land in controversy was in such close proximity to the settled and improved parts of the city that the corporate authorities cannot open and improve its streets and alleys and extend to the inhabitants thereof its usual police regulations and advantages without incidentally benefiting said land and enhancing the value of the same. It relies on the following cases: Fulton v. City of Davenport, 17 Iowa 404; Brooks v. Polk County, 52 Iowa 460; Tubbesing v. City of Burlington, 68 Iowa 691; Farwell v. Brick Mfg. Co., 97 Iowa 286; Windsor v. Polk County, 109 Iowa 156.
The Fulton Case was decided before section 616 was enacted, and lays down the rule substantially as contended by appellant, — that, under such circumstances, the power to tax the property arises. But it was also said in that case that in the exercise of such power, great care and circumspection should be observed, lest, perchance, injustice and oppression may ensue.
The rule was approved in the Brooks Case, where it was held that the land was taxable for municipal purposes because of the facts which are set out in the opinion. Cities ought not to extend their limits and unnecessarily include farm land for the purpose of increasing their revenues, and, on the other
As stated in the Fulton Case, and approved in the Brooks Case, it is apparent that every such case will have to be determined upon its own peculiar circumstances, without regard to any definite or fixed rule, and hence, doubtless, the decision in some instances will appear quite arbitrary, and perhaps unsatisfactory.
In the Tubbesing Case, the facts are not set out, but the court concluded that plaintiff had not affirmatively shown facts which entitled his land to exemption.
In the Faruiell Case, it was held, substantially, that a mere temporary occupation and use of land foa* agricultural purposes, when purchased for speculation, with intent to lay it out into lots and sell them, is not a good-faith occupancy and use for agricultural purposes within the meaning of the statute.
The Windsor Case was in regard to a tract of sixteen acres, worth $20,000, on which was the owner’s dwelling house, which, with improvements, was worth $30,000, and the tract, which was not platted and divided by streets, faced'a prominent city street which, at that point, contained sewers, gas and water mains, and it was held the land was taxable.
In Allen v. Davenport, 107 Iowa 90, it was held that lands within the limits of a city are not used and occupied in good faith for agricultural or horticultural purposes so as to be exempt when a portion only is used for farming and the remainder for lumber yard, stone quarry, an ice house, pasturage and a nursery, and is close to a well-settled part of the city, having many of the city conveniences.
But we are of opinion, from a reading of the record, that the facts in the instant ease are not sufficient to bring the case within the rule.' But little, if any, benefits accrued to
“I did at one time discuss with Mr. Brunson, an engineer, the question of making surveys and platting this land, and told him that if I did, I wanted him to do it for me, but I never decided to do it. I bought this land because I thought it would advance in price and I thought I could sell it. I knew because of its close proximity to Storm Lake, and the manner in which Storm Labe was building up, that it might become valuable in the future for town lots, but I could have made the same money on most any kind of land in the county anywhere else. ’ ’
It appears that plaintiff has contracted to sell twenty-six acres of this land, and this, as we understand it, since the suit was brought, or at least since the tax for 1912 was levied. The prospective purchaser testifies that he expected to farm the twenty-six acres, and plaintiff testifies that he expected to farm the remaining twelve acres, and, in fact, the entire property was farmed for the year 1913.
We shall not attempt to set out all the facts, but enough to show the general situation. There are no houses west of plaintiff’s within the corporate limits. Four or five new houses have been built within a year or two east and southeast of plaintiff’s property, and within a block or two. Sixth Street in the city extends to the southeast corner of plaintiff’s property. For many years, and before the city limits were
From these and other circumstances in the case, and from all the facts, we conclude that the trial court rightly decided that the land was exempt under the statute.
3. By the decree entered January 17,1914, it is adjudged that all levies and assessments of taxes made against the land in question to this date for city or town purposes, and which included library fund, are cancelled. It is said in argument that the attention of the trial court was not called to chapter 52, Acts of the Thirty-Fifth General Assembly, which provides that lands provided for in section 616 shall not be exempt from taxation for library purposes, and it is contended by counsel for appellant that, as. the decree cancels everything to the date of the decree, this was erroneous. Counsel for appellee concede this, or at least state that they make no claim of any right to cancel the library tax for the year 1913. Doubtless the matter of the amendment to section 616 in regard to the library tax was overlooked. At any rate, it ought not to be cancelled for the year 1913, and the decree should not be so construed. As stated, appellee concedes this to be so.
To the extent of the library tax for 1913, the decree is modified; in other respects affirmed. The costs will be taxed to appellant.