Brenton v. City of Des Moines

• Decision Date: 11 December 1934
• Docket Number: Nos. 42078-42088.,s. 42078-42088.
• Citation: 257 N.W. 794,219 Iowa 267
• Parties: BRENTON et al. v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

219 Iowa 267

257 N.W. 794

BRENTON et al.

v.CITY OF DES MOINES.

Nos. 42078-42088.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Polk County; Loy Ladd, Judge.

This is an appeal from a decree of the district court confirming special assessments levied by the city of Des Moines against certain real estate belonging to appellants in eleven different cases, all of which, on account of their similarity, were consolidated.

The decree of the lower court is modified, affirmed, and remanded.C. E. Hunn and H. S. Hunn, both of Des Moines, for appellants.

Fred T. Van Liew, of Des Moines, for appellee.

KINTZINGER, Justice.

Pursuant to a resolution of necessity adopted by the city of Des Moines, a contract was let and a sewer line, known as the Southwest sewer system, was constructed thereunder. The regularity of the proceedings for the construction of the sewer is not questioned. In April, 1925, a schedule of assessments with plats was duly filed as required by law. In May, 1925, these appellants filed objections to the schedule of assessments. In June, 1925, the objections were overruled, and the appellants appealed to the district court. The district court confirmed the assessments made by the city council, and appellants appeal from such ruling.

The area in question includes a large number of city lots in a tract known as “Lincoln Place Replat” lying south of West Grand avenue and west of Thirty-First street. The sewer is a trunk line, known as the Southwest sewer system, and was constructed to furnish permanent sewerage for the territory in question. The property already had street improvements with lateral sewers therein, connected with septic tanks. After the construction of the new sewer system, the laterals were connected therewith, and the septic tanks were demolished.

It is contended that the assessments levied are invalid for two reasons: (1) That the property was already adequately sewered by septic tanks, and that no benefits were conferred upon appellants' property by the new sewer; and (2) that the assessments levied were in excess of one-fourth of the actual value of the property.

[1][2][3][4] I. It is contended that the court erred in confirming the assessments because the property had already been adequately sewered by the installation of septic tanks to which lateral sewers from said property were connected. If the new sewer system conferred no benefits upon the property in question, it would not be liable for an assessment. If, however, it did confer benefits upon the property, an assessment commensurate with the benefits conferred would be authorized. Evidence was offered to support both contentions. The evidence on behalf of the city shows that the area and lots in question were benefited by the improvement. The evidence in support of appellants is in the nature of opinion evidence to the effect that the lots would not be benefited by the new sewer. An improvement of this nature may afford some benefit to the property served thereby, although private septic tanks may have already been installed. The evidence shows that the effluent from the septic tanks, formerly serving the area, was at times offensive. The evidence tends to show that septic tanks are, in their nature, more or less temporary, while the new trunk line system, to which the laterals were connected, is of a permanent nature. This being so, it necessarily follows that the new sewer system is of some benefit to the area in question. The evidence, however, fails to show the extent of the benefits conferred. The record shows that the proper resolution of necessity was adopted, and no question of its invalidity is raised. In such event, it must be presumed that the construction of the new sewer was a necessity. In such event, it is also presumed that the property served will be benefited thereby, unless such presumption is overcome by evidence. The adoption of a resolution of necessity is a legislative function, and, when duly and legally adopted, such action of the council is final. Elliott's Roads and Streets, § 560; McQuillin on Municipal Corp. (2d Ed.) vol. 6, § 2864, page 915; Chicago, R. I. & P. Ry. Co. v. City of Centerville, 172 Iowa, 444, 153 N. W. 106, 154 N. W. 596;Dickinson v. City of Waterloo, 179 Iowa, 946, 162 N. W. 242;In re Jefferson Street Sewer, 179 Iowa, 975, 162 N. W. 239; In re Appeal of Hume, 202 Iowa, 969, 208 N. W. 285.

[5] In order to determine how much the assessments exceed the benefits, it is necessary for, and the burden is on, appellants to show the extent of the benefits conferred. If there is no evidence showing the extent of such benefits, it will be impossible to determine whether or not the assessment does exceed the benefits. There is evidence to support the city's contention that the property served was benefited by the construction of the sewer. This was admitted by witnesses for appellants. City Engineer Tippe, one of the witnesses, testified “that the small tanks * * * constructed for Lincoln Place * * * were only a partial treatment of sewage, that they were not properly taken care of, and frequently emitted a very marked effluent that ran down the ravine south of it.” The same witness said: “As a permanent proposition, a small septic tank of this nature, in my opinion, is not a good installation; * * * they have been adulterated and the City has even built two or three * * * to take care of temporarily, a sewer treatment problem, but we have always intended finally to eliminate them whenever a main line sewer was built...