192 Iowa 1025 | Iowa | 1921
“The city and the river front improvement commission agree to quitclaim all its rights, title, and interest in and to that portion of said lot lying westerly of a division line drawn parallel to and ten feet westerly of the westerly channel line of the river.”
The appellant agreed to quitclaim to the city and the improvement commission, to be held in trust for the public, all' that portion of the lot lying easterly of the division line above mentioned.
The conveyances contemplated were made.
In addition to determining the property line, the contract provided that the city had the privilege of building a sea wall and sidewalk along the boundary line. The agreement then goes on to provide that, in the event the city should avail itself of the privilege of building the wall, and should in fact build the wall, certain things might be done with regard to the cost of said improvement. This portion of the contract is in dispute, and is before us for construction. It reads:
“Upon the completion thereof the cost of said improvement shall be paid by the party of the second part to the party of the first part, provided the party of the second part shall elect to pay for same in cash upon the completion of said improvement ahd acceptance of same by the party of the first part; otherwise the party of the second part agrees that the said city of Cedar Eapids may assess against the said property of the party of the second part the cost of said improvement as a special tax payable with interest at the rate of 6 per cent per annum in seven installments, as jwovided by the statutes of the state of Iowa governing the assessment of the cost of special street improve
Following tbe execution of tbe contract, tbe city, at some later time, constructed tbe wall, and in February, 1916, made tbe assessment which is complained of. Tbe assessment levied was $1,350, against tbe property conveyed by the Magnus Brewing Company to appellant, being tbe east portion of tbe half lot, 30 by 42 feet, fronting on the river. No assessment was laid on tbe balance of said half lot.
Objections were made to tbe assessment on tbe grounds:
(1) That tbe assessment was in excess of tbe benefit that would result to tbe property by reason of tbe improvement.
(2) That the assessment was in excess of 25 per cent of tbe valuation of tbe property.
(3) That appellant’s grantor, tbe Magnus Brewing Company, bad covenanted that no objection would be made to the wall’s being built, and tbe river front commission covenanted that, in consideration of being allowed to build tbe wall, tbe Magnus Brewing Company, or its grantees might pay for said wall, if it or its grantees so elected, in cash on tbe completion of tbe wall; but in case tbe Brewing Company or its grantees did not elect to pay in cash, it or its grantees might have their part of tbe cost assessed under tbe statute governing tbe assessment of cost of special street improvements; and that, under tbe statutes, tbe property could not be assessed in excess of one fourth of tbe value of tbe property.
(4) That tbe assessment was inequitable and should be reduced because bis property was only about one third of a full lot, and bis assessment is as much as though be owned a full' lot.
Tbe city council beard tbe objections an<d overruled them, and resolved to make assessment as originally contemplated.
(1) Whether, under the terms of the written contract, the assessment should be limited to the special benefits to the property by reason of the improvement.
(2) Whether, under the terms of the contract, the assessment should be limited to 25 per cent of the valuation of the property.
(3) Whether, under the terms of the contract, which provided that the assessment should be based on the “front-foot rule,” the assessment must be in proportion to the area, and uniform with that imposed upon adjacent lots.
The court held that the appellant was bound by the terms of the written contract under which the assessment was made, and that his objections were without merit, in view of the contract, and sustained the demurrer. Appellant stood on the ruling, and prosecutes this appeal.
Appellant’s objections and claims are:
(1) The assessment is in excess of the benefits.
(2) The assessment is in excess of 25 per cent of the value of the property.
(3) Under the contract, he had a right to have the assessment made as provided by statute for the assessment of street improvements, and subject to all the statutory limitations relative thereto, which statute provides that no 'property shall be assessed in excess of benefits, or in excess of one fourth.of the value of the property.
(4) The assessment against his lot is larger in proportion to area than that against other lots assessed for the same improvement.
II. Appellant did not make a specific objection that the whole half lot which was owned by the Magnus Brewing Company at the time the contract was made should have been considered, in levying the assessment, as fronting on the wall constructed, and that the assessment by the front-foot rule should have been levied against the entire half lot, instead of only against appellant’s property. Now, can the objections made before the council and the allegation and prayer of the petition for general equitable relief be held to include such objection? The assessment being controlled by the contract, was it necessary and pertinent to make objections contemplated in a statutory proceeding; or was the objection that the assessment was inequitable because not in proportion with other property fronting on the wall, other property fronting on the wall and extending back the full length of the lot being assessed only in
Appellant contends that the assessment must not be in excess of the special benefit to the property; must not exceed one fourth of the value of the lot; must be based on the area of the lot; and must be uniform with other lots affected by the improvement. This, counsel argue with reference to the contract. They say:
“The only meaning that can be fairly given to it is that, if the property owner does not elect to pay cash for the improvement, the assessment shall follow ‘the statutes of Iowa governing the assessment of the cost of special improvements. ’ ’ ’
This contention is in direct conflict with the express wording of the contract, which not only obligates the owner to pay the cost, but provides that this cost is to be determined in a manner directly contrary to the statutory manner of fixing the amount of the assessment. The contract provides that the assessment shall be made according to the front-foot rule; and the application of this rule necessarily eliminates consideration of benefits to the property or area of the same. Thus, the matters objected to, by appellant seem to inhere in the method of assessment fixed by the contract.
For the reason pointed out, the decree and judgment of the lower court is reversed, and the cause remanded for further proceeding not inconsistent with this opinion. — Reversed and remanded.