213 N.W. 257 | Iowa | 1927
The plaintiff, appellee, is the owner of land within the Kirk Subdrainage District in Harrison County, Iowa, assessed for a portion of the cost of the improvement erected in said subdrainage district, and brings this action for 1. PARTIES: a writ of mandamus to compel the board of mandamus: supervisors to correct the description of three drainage: irregular tracts belonging to F.O. and Viola assessed Kirk, and to levy a new assessment thereon. The lands: irregularity in the shape and form of the tracts correction in question results from the right of way of the of Chicago North Western Railway Company, which description. crosses the subdivisions of which they are, respectively, a part, in a northeasterly and southwesterly direction. The descriptions in the published notice of assessment and on the record of the auditor's office of such assessment are as follows:
"Part SE SE 7-79-42 13 acres;
"Part NW NW, SE cor. no acreage given
"SW NW 8-79-42 25 acres."
When offered at tax sale, no one, because of the defective descriptions, would bid, and the assessments have not been paid.
Two propositions only are urged by appellants, namely: one, that the plaintiff has not such interest in the subject-matter of the action as entitles him to maintain the action; and the other, that mandamus is not the proper remedy.
We are of the opinion that neither proposition is sound. Appellee has a direct interest in the assessment, if, because of the failure of the board to levy the same upon the land by *645 2. MANDAMUS: correct description, the tax cannot be when writ collected, and, as a result, his own land will lies: lands necessarily be subjected to an additional burden assessed for of taxation. It is alleged in the petition that drainage: such will be the case. Appellee's interest in correction the matter is direct and substantial, to the of extent of any extra burden that may be imposed description. upon his land. The board of supervisors had a description of each tract by metes and bounds or other definite designation before it at the time the assessment was levied, and it will be presumed that the record is still available. Unless mandamus will lie, the only remedy of appellee was to appeal to the board of supervisors to correct the error. Refusal upon the part of such board to do so would leave the owners of property situated within the district, and liable to an additional assessment, remediless. The action of mandamus, as defined by Section 12440 of the Code of 1924, as "one brought to obtain an order commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or situation," would seem to be particularly applicable. No element of discretion on the part of the board is involved. The amount of the assessment has previously been determined. It was its duty to properly describe the land within the district and liable to assessment when the assessment was laid thereon.
The demurrer should have been overruled, and the judgment is affirmed. — Affirmed.
EVANS, C.J., and FAVILLE and VERMILION, JJ., concur.