Millan v. City of Chariton

| Iowa | Feb 9, 1910

Laud, J.

1. corporations: street improvements: assessment of abutting The plaintiff’s lot abuts Woodlawn avenue in the city of Chariton, and is directly opposite to and of the same width as Grand Street, extending from said Avenue north and intersecting Armory, Linden, and Court Avenues, in the order named. . , _ .. In 1908 the city council ordered the pave- ° 9 ment of that portion of Grand Street in said city, extending south from the south line of Court Avenue to the south line of Woodlawn Avenue,” and “that the cost of said pavement shall be assessed to and against the property abutting thereon except the cost of. street and alley intersections which shall be made by the city at its own cost.” The sum of $234.30 was assessed against plaintiff’s lot, “being a true and correct and proportionate share of the cost of the improvement,” but she says that it was not subject to assessment, inasmuch as the city undertook to pave all street intersections. .Conceding that the pavement on Woodlawn Avenue was of an intersection, it does not follow that the lot was not subject to assessment. In compliance with section 810, Code, the city council directed that abutting property should be as- - sessed to pay the costs of the improvements except that of intersections. The council was authorized to assume that the costs of these and “one-half the cost of same at spaces opposite streets, highways, avenues and alleys intersecting, but not crossing” (section 817, Code), and, upon completion of the improvement, to ascertain “what portion of such costs shall be,, by law and the ordinance, or resolution . . . assessable upon abutting property.” Section 820, Code. The proportion of the costs to be assessed against any particular property is not ascertained by determining the expense of that part of the improvement on which it abuts, but the proportion of the entire cost which each parcel of property should bear is taxed against it, so that, in any event, the particular expense of paving one-half the width of Woodlawn Avenue in front of plaintiff’s property would not have been assessed against it, but rather the just proportion of the entire improvement which said property should bear, It is not questioned' but that plaintiff’s lot abuts on the pavement. By the term’ “abutting property” is meant that between which and the improvement there is no intervening land. 25 Am. & Eng. Ency. Law (2d Ed.) 1190.

And’ it is conceded the city, but for -its assumption of the cost of intersections, had authority to make plaintiff’s lot subject to assessment for the improvement. The resolution expressly declared that the cost should be assessed against all abutting property, and, as plaintiff’s property abutted on the improvement, it is manifest that it should bear its proper proportion. That the city may have assumed to pay the cost of an intersection which it might have avoided in no wise relieves plaintiff’s lot from its portion of the burden. This merely reduced the assessable cost of the improvement, and of this plaintiff is. not in a situation to complain. The vice of appellant’s reasoning is the assumption that, inasmuch as the city agreed to bear the cost of all intersections, this would relieve plaintiff’s property abutting on the improvement from its proportionate share of the entire cost. The resolution of the city council expressly charges such cost, excepting that of intersections, against all abutting property, and we discover no reason why plaintiff’s lot should not bear its just proportion thereof, even though the city under resolution adopted may be required to pay the cost of the portion of the improvement in front of her property. The ruling of the trial court has our approval. — Affirmed.