City of Clinton v. Owners of Property Situated Within Certain Described Boundaries, No. 54635

• Court: United States State Supreme Court of Iowa
• Writing for the Court: REYNOLDSON
• Citation: 191 N.W.2d 671
• Parties: CITY OF CLINTON, a Municipal Corporation, Clinton County, Iowa, Appellee, v. The OWNERS OF the PROPERTY SITUATED WITHIN CERTAIN DESCRIBED BOUNDARIES, Appellants.
• Docket Number: No. 54635
• Decision Date: 11 November 1971

Page 671

191 N.W.2d 671 CITY OF CLINTON, a Municipal Corporation, Clinton County, Iowa, Appellee,
v.
The OWNERS OF the PROPERTY SITUATED WITHIN CERTAIN DESCRIBED BOUNDARIES, Appellants. No. 54635. Supreme Court of Iowa. Nov. 11, 1971.

Page 673

Lane & Waterman, Davenport, for appellants.

Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellee.

REYNOLDSON, Justice.

This is an equity action for the annexation of certain territory by the city of Clinton under §§ 362.26 and 362.27, Code, 1966. From decree of trial court ordering the annexation, defendants appeal. We affirm.

In March 1964 a comprehensive plan for plaintiff city was prepared by Harland Bartholomew and Associates of St. Louis, Missouri. Acceptance by city council resolution followed on February 22, 1965. This master plan described Clinton as then including an area of about 12 square miles, approximately one-fourth of which was unusable land, and water areas. Projecting a population growth from 34,500 (estimated) in 1964 to a 1985 figure of 65,000, Bartholomew proposed annexation of a designated area comprising about seven square miles.

On October 10, 1966, however, Clinton council, following a proposal of the city plan commission, passed a resolution directing published notice of public hearing to consider a resolution for annexation of about 22 1/2 square miles. The area proposed to be incorporated within the city limits extended westward for from 4 1/2 to 6 1/2 miles. It included the city airport and a private golf course. The boundaries 'hooked' partially around an industrial area which by moratorium agreement with city of Comanche could not be annexed by either city until 1972. With the exceptions of the airport, golf course, and Pine Knoll Trailer Court, most of the area was farm land. Population of this tract was variously estimated to be 750 to 1200 persons. About 360 of these persons resided in the trailer court.

At public hearing on October 24, 1966 the council heard numerous objections and resolved the proposed annexation be submitted to voters of Clinton on November 29, 1966. At that time (before enactment of 63 G.A. ch. 1180, § 1 (1970)) residents of the territory proposed to be annexed were not permitted to vote. Following the three week publication of notice of election required by § 362.26(3), Code, 1966, the election was held, resulting in 5058 votes for the annexation; 3965 votes against; and 110 spoiled ballots. As required by § 362.26(5) Clinton filed its petition for annexation in district court on March 17, 1967.

Defendants, constituting a majority of the property owners in the annexation territory,

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rely on four propositions for reversal, based upon alleged procedural and substantive errors. We consider these propositions in separate divisions.

I. Did plaintiff fail to comply with statutory requirements of § 362.26(3) and § 362.26(4)?

Section 362.26(3), Code, 1966, provides the form for the annexation proposition ballot which shall, 'set out (the) legal description of the territory.' Section 362.26(4) requires the petition (to be filed in district court following vote of annexation) to state, '* * * under a resolution of the council, The territory therein described was authorized by the voters of said city to be annexed * * *.' (Emphasis supplied.)

Error in this procedural requirement of a 'legal description' in the ballot form, incorporated by reference in the mandatory petition allegation, was first raised by special appearance filed on behalf of 358 defendant property owners. They alleged no jurisdiction of the parties or subject matter was obtained because the description was fatally deficient in that 1) it was not a metes and bounds description which would meet the test of a 'legal description,' 2) it made reference by exception to territory presently within the city of Clinton and the city of Comanche without describing it, and 3) it excepted a railroad right of way without defining it.

It is true the ballot description of the annexation territory was not by metes and bounds. Generally, the description was by governmental survey units, with exceptions for portions already within corporate limits of Clinton or Comanche. The description concluded.

'Also except all that part of the Davenport, Rock Island and Northwestern Railway Co.'s right of way extending from the north line of Section 23, Township 81 north, Range 6 east of the 5th P.M., westerly to the center line of Millcreek.'

We have said failure to literally comply with every word of the annexation statute is not fatal. City of Ames v. Olson, 253 Iowa 983, 114 N.W.2d 904 (1962). We have held substantial compliance with statutory procedure is sufficient and that statutes providing for the method of extending corporate boundaries are to be construed liberally in favor of the public. City of Cedar Rapids v. Cox, 250 Iowa 457, 93 N.W.2d 216 (1958); Incorporated Town of Windsor Heights v. Colby, 249 Iowa 802, 89 N.W.2d 157 (1958). See also 2 E. McQuillin, Municipal Corporations § 7.14, pp. 328--329 (3d ed. rev. 1966). Considering defendants' proposition in light of these rules, we find there was substantial compliance with the statute. Section 362.26(3) does not mandate a metes and bounds description.

Complaint is made the annexation area cannot be ascertained without an independent identification of the boundary lines of Clinton and Comanche. The function of a description required by § 362.26(3) would appear to be similar to the office of a description in a deed. In that connection it has been authoritatively stated,

'The office of the description is to identify or furnish the means of identifying the property conveyed. Indeed it may be said that the office of a description is not to identify the land, but to furnish the means of identification. The description will be sufficiently certain when from it the property can be identified either by a person who is familiar with the locality or by an actual survey. It is not essential that the deed contain such description as will enable the identification to be made without the aid of extrinsic facts.' G. Thompson, Real Property § 3020, pp. 438--439 (1962 repl.)

Still more relevant is the decision of this court in Smith v. Blairsburg Independent School Dist., 179 Iowa 500, 159 N.W. 1027 (1916). That case involved validity of a school district reorganization. The statute required the petition to describe

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'the boundaries of the contiguous territory.' The petition contained a description drafted similarly to the one in this case. We said at 179 Iowa 506, 159 N.W. 1028--1029:

'A petition such as the statute requires need not follow any set form. All essential (sic) is that the boundaries of the proposed district be indicated, and that the territory therein be contiguous. * * * It is not very material whether * * * the entire body to be included therein be indicated by specifying the different tracts to constitute the proposed district, or the boundary lines only be designated. It is enough if the petition as a whole indicate the boundaries of the proposed district in any definite manner * * *.'

The description used on the ballot in the case at bar was a 'legal description' under the rule laid down in the Blairsburg case, supra.

The railroad right of way exception contained in this description is not unlike exceptions frequently found in deeds and abstracts. There is no showing anyone owned this area other than the railroad. It was not a party to this action. There is no indication anyone was misled by this description or that it affected the rights of those most vitally concerned.

We find the ballot description as incorporated in the petition was in substantial compliance with the statute. The infirmities complained of are not sufficient to invalidate the proceedings.

II. Did the district court obtain jurisdiction of the person of all landowners in the annexation area, as shown by the plat book?

Plaintiff city admits certain landowners were omitted from the petition as filed, and from the first notice of filing. Defendants assigned this and the claimed failure to mail notice under rule 60.1, Rules of Civil Procedure as jurisdictional basis for their special appearance. They further complain there was no search for property owners on the date petition was filed, but both before and after. The last search resulted in additional persons being made defendants. The court then ordered all such additional landowners brought into the case as indispensable parties.

The controlling case on this issue is City of Cedar Rapids v. Cox, 250 Iowa 457, 93 N.W.2d 216 (1959), where, as here, additional landowners were discovered and brought in by order after petition was filed. We there said,

'* * * (T)he court held there were eight owners of property in the territory to be annexed, as shown by the platbooks in the office of the county auditor, who were not made defendants.

'* * * It is argued that having held there were indispensable parties not made defendants the court was compelled to dismiss the action and could not order them brought in.

'The argument is without merit. The trial court proceeded strictly in accord with rule 25(c), R.C.P., which states, 'If an indispensable party is not before the court, it shall order him brought in." (250 Iowa at 465, 93 N.W.2d at 221.)

In the case before us the petition was amended to name the omitted owners. The record shows notice of filing petition, including the additional owners and extended description, was then republished pursuant to § 362.27.

Defendants alleged further jurisdictional defect, claiming notice was not mailed to defendant property owners as required by rule 60.1, R.C.P. City of Cedar Rapids v. Cox, 250 Iowa 457, 93 N.W.2d 216 (1959) held failure to comply with rule 60.1, R.C.P., was not a violation of the due process requirements of the federal and state constitutions. We are not required to decide whether the rule applies...