193 Iowa 750 | Iowa | 1922
Lead Opinion
I. The testimony is largely directed to the question of the value of the tract of land assessed. The paving extends along the west border of plaintiff’s land for a distance of about 80 rods, and under our statute, the assessable area for such improvement is limited to a width of 300 feet. This area includes between 8 and 9 acres, out of a farm of 110 acres. The farm is shown to be a valuable and desirable property, well improved and cared for. It is used exclusively for agricultural purposes, but in location and character, could easily and no doubt profitably be platted and sold for residence purposes. As is not unusual upon such questions, witnesses equally well acquainted with the property, and, so far as we can tell, of equal intelligence and credibility, differ very widely in their estimates of its value, varying all the way from $1,000 to $4,000 per acre for the 300-foot strip. It is noticeable, however, that witnesses giving the highest estimates quite uniformly mention, as the ground of their judgment in this respect, the availability of the strip for conversion into town lots, and the prices which such lots might be expected to command. ¥e are disposed to think that such estimates do not afford a sufficient or safe basis
Taking the situation as it is disclosed by the entire record, we are disposed to say that the trial court did not unreasonably reduce the plaintiff’s assessment. The statute limits the authority of the town to make and enforce a special tax of this character to 25 per cent of the value of the property, and even as reduced by the court, this land of the plaintiff’s is computed at some $3,000 or more per acre, a by no means merely nominal valuation; and the decree to that extent will bo affirmed.
“If the owner of any lot or parcel of land * * * shall, within 30 days from the date of such assessment, promise and agree in writing' * * * that, in consideration of having the right to pay his assessment in installments, he will not make any objection of illegality or irregularity as to the assessment or levy of such tax * * * and will pay said assessment with interest * * * such tax so levied * * * shall be payable in seven equal installments * * * but where no such promise or agreement in writing shall be made by the owner * * * within said time, then the whole of said special assessment so levied upon and against the property of such owner shall mature at one time, and be due and payable, with interest from the date of acceptance of the work by the city council.”
The plaintiff did not make such promise or agreement within the statutory limit of time, but contested both the validity of the tax and the amount of the assessment, and, so far as shown, never at any time offered to comply with the condition precedent to the privilege of paying his tax in installments.
It follows that the decree appealed from will be modified by eliminating the clause allowing plaintiff to now execute the waiver and acquire the right to pay in-installments. It was his right to refuse to make the promise, and to take his chance at defeating or reducing the tax. Doing so, he has secured the benefit of a reduction of some $4,000 from the original schedule, or $3,000 from the original levy; and under the statute, we regard it as clear that he cannot now claim the advantage which was offered to him on condition of a waiver of his right to contest.
Modified as above indicated, the decree will be affirmed.-— Modified and affirmed.
Dissenting Opinion
(dissenting). — I am not satisfied with the conclusion reached in Paragraph 2 of the opinion. I am inclined to affiian the decree of the lower court allowing the property owner to pay the assessment in installments. I shall state my reasons very briefly. I am not so sure but that, under the interpretation of the statute by the majority, the property owner is deprived of his constitutional right of appeal. 3 Corpus Juris 297. But I shall not go into that question. The majority opinion refers to the provision of the statute in regard to a written waiver as a reward or inducement to the property owner for signing the waiver. I am inclined to think that it is more in the nature of
“The landowner exercised his statutory right of appeal from the assessment of the board of supervisors. The question thus presented was triable de novo-. The right of appeal would be a barren right if, pending the appeal, penalties should be permitted to absorb the fruits of final success. The appeal is a part of the statutory method provided for determining the amount of assessments which should be levied upon the land.”
See, also, Rystad v. Buena Vista County Dr. Dist., 170 Iowa 178, where it was held that penalties for the nonpayment of assessments of benefits for the construction of drainage improvements are held in abeyance, pending an unsuccessful appeal on behalf of the drainage district, reducing the assessment made by the board. In the instant case, as in the original Bystad case, the appeal to this court was not by the property owner. See, also, Hedge v. City of Des Moines, 141 Iowa 4, 25. The proper assessment was held to draw interest, but it was held that