164 Iowa 223 | Iowa | 1914
In the year 1911 the city council of defendant city caused the streets surrounding what is known as the courthouse square in that city, which square is in the center of the business district; and a street known as North First avenue, running from the square to the railway depot, to be paved, and also a part of the streets to be curbed and guttered. Prior to the making of the improvement, the plaintiff county had constructed and maintained a gutter on the outer edge of the square on its four sides, and installed posts and hitch racks immediately outside the gutter. When the improvement in question was put in, this gutter was joined by a brick pavement, and for the first nine feet outside the hitch racks brick was laid upon a concrete base.
The paving on the south side of the square is seventy feet
The cost of the curbing, paving, and guttering around the square, not counting the items already mentioned as paid by the county, was $20,752.95, and the final assessment against the county, from which this appeal was taken, was $8,908.29, with interest from the date of original assessment. Both parties appeal.
The testimony taken before the district court as to the proper assessment to be made, consisting largely of opinions, was, as might well be expected, conflicting and contradictory; witnesses living in the city fixing the value of the county
The determination of the value of benefits to plaintiff’s property is rendered more difficult by reáson of the fact that the same has no market value, and by the terms of the dedication cannot be sold and conveyed, and, in fact, could not be converted to other uses that would be inconsistent with the terms of the dedication. However, said property is liable to special assessment for such improvements.
The assessment of benefits made by the city council has a presumption of being correct, and should not lightly be set aside by the court, but, on the other hand, presumption should not be allowed to overcome the evidence, and, where it appears that the assessment as made is hot equitable or fair, it then becomes the duty of the court to make such an assessment as should have been made by the council in the first instance. This proposition is elementary, and, I presume, would be in no manner questioned, and, with this proposition in mind, coming now to consider the question of assessment made by the city council, it is difficult, if not wholly impossible, to believe that the assessment as made is equitable and in accordance with the benefits conferred. This seems to me manifest, when plaintiff’s property contains only about one-half of the area of the other property abutting on this improvement, and only an equal amount of frontage on this improvement, and the assessment as made on plaintiff’s property is about three-fifths of the total cost.
That one property may be assessed higher than another is no doubt true, but, when this is done, some reason therefor must exist, and, if any reason éxists-for the greater assessment upon plaintiff’s property, it has not been shown upon the trial of this case. Special assessments for street improvements shall be in proportion to the benefits conferred, and not in excess thereof.
Both the front-foot rule and the area rule have the approval of our Supreme Court. That neither of these rules was adopted in making this assessment fully appears from the testimony of the witness Hiatt, who was the engineer in charge
Both plaintiff and defendant have offered the-evidence of various witnesses as to the amount of benefits conferred upon both plaintiff’s and defendant’s property. The evidence was largely in the nature of opinion based upon different theories, and,' while the court is acquainted with the most of the witnesses and has the utmost confidence in their veracity, yet the fact remains that, because the evidence being largely in the nature of their opinions in determining the question at issue, their evidence is not of sufficient weight and would hardly afford a safe guide for the court. This is more especially true of defendant’s witnesses, all, or nearly all, of whom assume in their evidence that it was plaintiff’s duty to provide a good and proper street surrounding their, property for the benefit of all the people of the county, and likewise their duty to maintain hitch racks for the people of the county to use. This and other matters of like character were the bases of their opinions. That it is the duty of the plaintiff to aid in maintaining the streets surrounding their property right be conceded; but this does not arise because it is the county, but because they are the owners of the property. It may also be conceded that the plaintiff has the right to provide hitching racks for the use of the people, but it might not follow that, because it does do this, it is not their duty to improve the streets. It is a fact that the court might take judicial notice of that the counties, as well as the cities, states, and even the nation itself build large beautiful buildings, not alone for their use, but for their beauty, and in which the people take a just pride. That the people of this county take a pride in their courthouse and its yard is, no doubt, true, and anything that materially adds to its use and appearance should properly be considered as benefit and as adding to its value. And that the improvement in question adds to the use and enjoyment of plaintiff’s property, as well as adding to its general appearance, is abundantly established in fact. In justice to the plaintiff, it ought to be said that it does not claim that it did not receive the proportionate share of the benefits assessed to them, .and I think it must be fairly said that, under the circumstances, they must be sustained in this proposition. ‘A property owner is entitled to have the cost of the improvement ratably and proportionately distributed over all the property in the assessment district.’
Of course the courthouse square is paved on all sides, and any one may now approach from any angle or side of the square. This is something of an advantage over private
Moreover, the property is public. It is not kept for private profit or gain, and the county actually gains nothing in dollars and cents from the pavement. Each member of the political body may have some gain in the way of private convenience, and perhaps in other ways, as the saving of shoe leather, clothing, etc. After all is said, it is perfectly manifest that these assessments must, of necessity, be only an approximation. The witnesses were before the trial court. The trial judge knew the exact situation, and, on the record as we have it, we do not feel justified in disturbing the final assessment made by him against the county on either appeal. As neither party is satisfied, we may well assume that the result is as nearly correct as we could hope to make it, were we without an opinion from the trial court. Enough was allowed because of special convenience' to the county property, over and above the area and front-foot rule, as it seems to us, to fairly equalize the matter.
The judgment seems to be as nearly correct as we could hope to make it, and it is therefore Affirmed.