109 Iowa 386 | Iowa | 1899
The proceedings adopted for the levy <o£ the tax in question are not complained of prior to1 the acceptance of plaintiff’s bid for the work. The resolution ordering this improvement contained the following provision:
II. But we need not rest our holding wholly upon this ground. It is clear that the tract of land in question was so nearly valueless that a lien upon it would have been
III. Furthermore, we may say that the matter set up is not jurisdictional; it is an irregularity, which may be disregarded, under sections 478, 479, Code 1873, which
IV. The defendant Carrie M. IVIetzgar sets up, as a Special defense, that her property does not abut upon the street which was improved. The facts as to this claim are these: Church street (the one in question) was originally laid out with a bend or curve in it opposite this defendant’s land. In January, 1891, the lines of the street were straightened by ordinance in such a manner as to leave something more than ten feet of ground between the new street line •and her lot line. Sections 4 and 5 of this ordinance are ;as follows:
“See. 4. Said city of Otumwa hereby gives, grants, bargains, and conveys to the respective owners of lots in Bobert Bellows’ addition fronting on Church street, shown as Green street on the original plat of said addition, all those portions of said Church street which are vacated by section two of this ordinance, the respective owners of said lots to take simply such portions of said vacated portions*392 of Church street as lie between their respective lots and-Church street as re-established by section one of this ordinance ; the same to become a portion of said respective lots,, and to- be divided by a continuation of the lines of said-lots to Church -street as re-established by this ordinance,- and to be hereafter known as a part of said lots, respectively,, and the title of the same to pass by conveyance of said-respective lots by numbers.
“Sec. 5. That the mayor of the city of Ottumwa is hereby authorized and empowered in the name of said city to execute deeds to said respective owners of lots in Robert Fellows’ addition conveying to said owners 'all right, title, and interest of the city of -Ottumwa in the- vacated portions of said Church street lying between their respective lots in said addition and said Church street as relocated by section one. of this ordinance.”
After the adoption of this ordinance, the fence on defendant’s property along the old street line was moved out to the new line fixed, and the strip of ground so vacated was inclosed in her lot, and has remained so since. We are of the opinion that the grant contained in section 4, together with the possession taken by defendant, operated to vest in her the equitable title to the land in question. Dempsey v. City of Burlington, 66 Iowa, 687; City of Marshalltown, v. Forney, 61 Iowa, 578. Such ownership-would make the real estate assessable- for purposes of this character. City of Muscatine v. Chicago, R. I. & P. Ry. Co., 79 Iowa, 645. There is some claim that the fence was moved out without the owner’s consent, and for a temporary purpose only; but it has been permitted to so remain ever since it was erected, and it seems reasonably clear that the intention was to take and hold the ground under the ordinance.
Y. After this appeal was taken, an amendment to the answer of defendants was filed in this court. Appellee moves, to strike this pleading from the- files, and this motion must
We have considered all the questions raised in argument, and our conclusion is that the decree of the district, court should be affirmed.