103 Kan. 142 | Kan. | 1918
The opinion of the court was delivered by
The City of Courtland, a city of the third class, let a contract for curbing and guttering certain streets. An action was brought by several owners of abutting property, seeking to enjoin the carrying out of the contract and the levying of assessments to pay for the work. On final hearing a permanent injunction was granted, but further-proceedings under the resolutions declaring' the improvement necessary were expressly allowed. The defendants appeal.
The principal objection made to the power of the city to make the improvements referred to, by the means employed, is that no ordinance has ever been passed establishing the grade of the streets affected. The plaintiffs contend that the grade can be established only by ordinance, and that it must be established before any contract for curbing, guttering, or paving is let. Cases are cited tending to support this contention. (C. & N. P. R. R. Co. v. City of Chicago, 174 Ill. 439; State v. District Court of Ramsey Cotonty, 44 Minn. 244.) It has,been held sufficient, however, if the grade is fixed before the.improvement is made. (Allen v. City of Davenport, 107 Iowa, 92, 99.) The matter is so largely controlled by statute that little aid is to be derived from decisions in another jurisdiction.
“The mayor and council of the cities of the second and third class may by ordinance establish the grade of any street or alley in said city, and when the grade of any street or alley shall have been so established said grade shall not be changed until a resolution shall have been passed by a three-fourths vote of all the councilmen elected declaring it necessary to change.said grade.” (Gen. Stat. 1915, § 887.)
The power of a city to establish a grade cannot be thought to be derived from this statute, for it existed prior to the year named. Nor do we regard the statute as making an ordinance necessary to the establishment of a grade in all cases arising after its adoption. Its effect is to provide that a grade which is once established by ordinance shall be changed only by a three-fourths vote. We think the mayor and council still have authority, outside of this statute, to fix the grade' of a street, and that this result may be brought about by any action, as for instance by a resolution, giving expression to a present intention to accomplish that purpose. (See Wood v. Village of Pleasant Ridge, 12 O. C. C. 177, 181.)
“Cities of the third class in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to other powers granted by law: To pave, curb and gutter any street, avenue or alley in said city and to tax the costs and expenses thereof to the abutting property and to issue improvement bonds for the payment of the costs and expenses of such improvements as herein provided. First, For all the paving, curbing, guttering and improvements of the squares and areas formed by the crossing of streets, avenues and alleys, the assessment shall be made upon all the taxable property of the city. . . . Second, For paving, curbing, and guttering all streets, avenues, and alleys and for doing all excavating and grading necessary for the same, except the squares and areas formed by the crossing of*145 streets, avenues and alleys, after said streets, avenues and alleys have first been brought to grade, as now provided by law to be done, the assessments shall be made for each block separately, on 'all lots and' pieces of ground to the center of the block on either side of such street, or avenue, the distance improved or to be improved, or on the lots or pieces of ground abutting on such alley, according to the assessed value of the lots or pieces of ground without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council.” (Gen. Stat. 1915, § 1974.)
We do not regard this as intended to fix the order in point of time in which the grade shall be established with respect to the contracting for the improvements or levying the assessments. Its purpose, as we interpret it, is to insure that the abutting property shall not be required to carry the expense of bringing the street to grade, by providing that it is only the cost that accrues after that has been done which shall be charged to the adjoining lots.
In Keys v. Neodesha, 64 Kan. 681, 685, 68 Pac. 625, it was said:
“Before a city can legally levy a special assessment for building' sidewalks, it must establish a grade and bring that part of the street on which the walk is to be built to the grade so established.”
But the reason is that until the grade is established it cannot be determined what part of the whole cost of the improvement is incurred in bringing the street to grade — that portion of the expense being chargeable to the city generally, and not to the abutting property.
The interest of the adjoining owner in having the grade established is to be assured that under color of paying for the curbing and guttering he is not required to pay for any part of the grading. The engineer testified that “the plans, specifications and profile did not call for any street .grading or filling”; that “the excavations referred to in the specifications was simply what was necessary to install the curbing and guttering”; but that “there was some filling necessary to install the curb and gutter”; that “the deepest excavation would not exceed fourteen inches, and that would be at the street intersections”; that “the excavation generally required for the work was from 8 to 10 inches”; and that “in making the estimate of cost for this work he did not consider any excavation or filling other than that actually connected with the. curb and gutter itself.” The representative of the company which took the contract testified that “there would be some slight difference in the cost of the work for the different blocks; that he simply took the entire street into consideration in figuring on the job; that as to excavations necessary for the work, he estimated that, as a whole it would be the thickness of the pavement (6 inches)” — referring to the guttering; that “from a practical standpoint there is no difference in the elevation of the different blocks”; and that “he figured nothing for extra excavation in any one block.” .Other witnesses said that some of the grade stakes were level with the ground, some above the ground, and some below the surface, a variation of twelve inches being indicated.
A decision in favor of the validity of the proceedings would have implied a finding that the variation between the natural grade and that established by the city was not substantial. But there clearly was some difference, and the court must be deemed to have found upon sufficient evidence that although small it was too large to be rejected as inconsiderable, thereby establishing that fact for the purposes of this cas|f Some slight amount of filling and excavating had to be done on account of this situation, and presumably the contract price was
In Clark v. Lawrence, 75 Kan. 26, 88 Pac. 735, it was said:'
“That some grading is necessary to level or fill the inequalities in the surface of a dirt road to prepare it for receiving the pavement seems' evident; also that such leveling would be a n'e’cessáry incident to the paving of a street, even after it had been brought to grade.” (p.-29.)
The “grading” there referred to was obviously the leveling or smoothing over of slight and inconsiderable inequalities in the surface of the road existing after it had once been completely “graded” in the sense of being brought to the established grade. Here the process was that of bringing the natural grade to that fixed by the engineer.
The records of the proceedings of the city council with reference to the proposed improvement, as originally made, failed to show a due compliance with the law in several particulars.
The judgment is affirmed.