221 N.W. 351 | Iowa | 1928
Proceedings for severance were formerly triable at law. Code 1. TRIAL: Supplement, 1913, Section 622; In re Town of Le
method of Roy,
The present channel of the Missouri River at Council Bluffs is comparatively uniform in its course. Prior to 1877, however, the channel at one point took a sharp bend northwardly for about two miles, curving thence to the west, south, and 2. MUNICIPAL southeast back to the line of its more general CORPORA- direction at a point about a half mile from the TIONS: point of departure, thus forming an indentation detachment or loop or oxbow on the Nebraska side. In 1877, of by avulsion the river cut through between the territory: points mentioned, leaving about 1,200 acres material within the oxbow on the northwesterly or considera- Nebraska side of the river. The Supreme Court of tions. the United States, in Nebraska v. Iowa,
About three fourths of the territory in controversy is used for farming and truck gardening. A number of residence additions and some industrial plants occupy the remainder. The northern section of the old river channel now forms a body of *559 water known as Carter Lake, the shores of which on both sides are used to a considerable extent for clubs, resorts, and summer and permanent homes. The number of permanent residents of the territory is about 700, few, if any, of whom have their business occupations east of the river. There is in the territory one public school building, constructed partly of wood and partly of brick. It has four rooms and four teachers. The instruction is to and including eighth-grade work. No other public buildings and no public park are there. Some water mains have been laid by the city of Council Bluffs. They are being paid for by the local taxpayers. The water for these mains is furnished through the Omaha waterworks. There are no sewers except such as have been laid by private enterprise. There is one stretch of pavement. It was originally constructed of cobblestones, and later resurfaced. Original and resurfacing cost was paid for privately. Some of the streets have been graveled, but at private expense. The streets generally are unimproved. The city of Council Bluffs furnishes 1,000 feet of fire hose. Fire protection, however, comes from Omaha. Council Bluffs has furnished police protection during summer seasons, but calls upon the Omaha department in cases needing more expeditious attention than Council Bluffs department can give. In case of arrest, the prisoner must be taken through Nebraska territory to the station east of the river. Reliance for police protection is chiefly upon the Omaha force. The city of Council Bluffs furnishes 14 street lights, costing in the aggregate $226 a year. The current is provided by a private company, supplying both Omaha and Council Bluffs. There is no public disposal of garbage. Telephone connection is with the Omaha central. Toll charges must be paid for communication with Council Bluffs proper. Postal service is from the Omaha post office.
Since the agitation for severance, defendant's city council has made one or two annual appropriations of $1,000 for street maintenance, of which only $500 was paid. The taxable valuation of all the real and personal property in Council Bluffs is $6,789,321, besides that of agricultural property, $194,750. The taxable valuation of the oxbow real estate is $163,427, and of the personal property $4,752. The tax levy on the oxbow real estate for corporation purposes in 1925 was
I. The purpose of municipal incorporation is to furnish local self-government and co-operative service. The needs of the municipality and the benefits to the property and residents thereon are the sole justification for inclusion of land within municipal limits. A municipality in this state may not, against the will of the owner, retain within its limits land merely for the purpose of deriving revenue from it. Evans v. City of CouncilBluffs,
II. The city sets up laches, acquiescence, and equitable *561
estoppel, based upon the absence of any objection to the inclusion, or of any effort to detach the 3. MUNICIPAL territory for fifty years, since the physical CORPORATIONS: separation resulting from the change in the detachment of river. (Of course, the statute of limitations territory: is not involved.) Laches is a defense in unallowable equity, but only when to allow it as a defense defense. would be equitable. Mere delay that does not work disadvantage or harm to others is not such laches. Every case is governed by its own circumstances, and laches does not prevail as a defense where the adverse party has been placed in no worse position on account of the delay. Dennis v. Harris,
Equitable estoppel does not arise in the absence of reliance and injury. If the adverse party has not acted to his prejudice, he is in no position to assert an equitable estoppel. Harley v.Merrill Brick Co.,
Acquiescence in proper cases may amount to a defense, either as working a ratification or an estoppel. 21 Corpus Juris 1216; 2 Pomeroy's Equity Jurisprudence (4th Ed.), Section 816 et seq. Ratification is the giving of validity to the act of another, implying power to do the act by the ratifier, and the doing of the act without his full authority by such other. See 7 Words Phrases 5927 et seq.; 4 Idem (Second Series) 123 et seq.
No prejudice has resulted to the city of Council Bluffs from the delay in asking for severance. The city has, during the years, subjected the property in question to municipal taxation, without reciprocal benefits. Submission to an inequitable tax for one year can give no right to the imposition of it the next year. Such payment of taxes cannot be effectively set up as estoppel.Deiman v. City of Fort Madison,
Furthermore, the property owners have had, each and every year, the statutory right to severance. The condition giving them that right was a continuing condition, and the statutory right was a continuing right. None of the suggested defenses can apply to such a continuing and ever existing and present right. Deiman v.City of Fort Madison,
The city relies upon State ex rel. West v. City of Des Moines,
Severance was properly decreed. Ashley v. Town of Calliope,
STEVENS, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur.
