Dewey v. City of Des Moines

• Decision Date: 07 April 1897
• Citation: 101 Iowa 416,70 N.W. 605
• Parties: DEWEY v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

101 Iowa 416

70 N.W. 605

DEWEY

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

April 7, 1897.

Appeal from district court, Polk county; C. P. Holmes, Judge.

This is an action in equity begun in April, 1894, to set aside a special assessment for paving East Grand avenue, in the city of Des Moines, between Eighteenth street, on the west, and the State Fair Grounds, on the east, upon which street, and between the points named, plaintiff's lots abut. Certificates were issued to the contractors doing the work, and were by them assigned to the defendant the Des Moines Brick-Manufacturing Company. The latter company filed an answer and a counterclaim against plaintiff and the lots in question, to foreclose the certificates. Plaintiff replied to the counterclaim, presenting the same facts which were pleaded in the petition. The brick company filed a motion to strike one paragraph of the reply. The parties then agreed that said motion should be treated as a demurrer, and considered as referring also to the portions of the petition which are embodied in the paragraph of the reply assailed. It was also agreed that the allegations of fraud in plaintiff's pleadings should be so changed as to eliminate any charge of fraud in fact. The case was tried, and a decree entered against the plaintiff, and he appeals. Affirmed.Gatch, Connor & Weaver, for appellant.

Guernsey & Baily, for appellee Des Moines Brick-Manuf'g Co.

J. K. Macomber, for appellees City of Des Moines and C. H. Dillworth.

KINNE, C. J.

1. We proceed to a consideration of the questions involved in this appeal in the order in which they are presented by the appellant. The first claim is that the city had no power to pave the street in question at the expense of the abutting property owners, and that the improvement and special assessments were fraudulent, oppressive, and void. It is to be remembered that, under the agreement of the parties, plaintiff does not claim that there was any actual or intentional fraud or collusion on the part of the city council or board of public works, but only fraud and collusion in law, as shown by the facts pleaded. Counsel elaborately argue this question, and present many authorities in support of their claim. We cannot consider in this opinion, in detail, all of the cases cited. We can only determine from an examination of them what the law applicable to the question is, and announce it, with a reference to the cases, and a brief statement of the reasons for our holding. The power of the city council to determine whether such improvements shall be made is undoubted. Indeed, counsel do not dispute it, but they insist that the exercise of such power is subject to review by the courts. The rule of law is that where a municipal body, like a city council, is invested with power to make improvements like those in controversy in this action, the necessity for making such improvements is a matter for the exclusive determination of such body; and when such body acts within the authority given, and its determination is fairly made (that is, without fraud or oppression), it cannot be interfered with by the courts. City of Muscatine v. Chicago, R. I. & P. Ry. Co., 88 Iowa, 291, 55 N. W. 100;Everett v. City of Council Bluffs, 46 Iowa, 66;Brewster v. City of Davenport, 51 Iowa, 427, 1 N. W. 737;Coates v. City of Dubuque, 68 Iowa, 550, 27 N. W. 750;City of Burlington v. Quick, 47 Iowa, 222;Brown v. Barstow, 87 Iowa, 344, 54 N. W. 241;Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 509; Dill. Mun. Corp. § 94. The question then is, did the body act within the power given, and was its determination to make the improvements fairly made; that is, without fraud or oppression? It is insisted that under the facts disclosed in this record the council acted fraudulently and oppressively. The facts upon which plaintiff predicates his claim of fraud in law are, in substance, these: That the improvements were ordered at the instance of the directors of the State Agricultural Society, and because they would be of great benefit to said society in holding its annual fairs. It can make no difference as to who instigated the proceedings, as to their legality. The question is, as we shall hereafter see, as to the necessity for the improvements. Plaintiff alleges that from the western point where said improvements commence to the extreme eastern point, at the fair grounds, was a distance of over one mile, and that in that entire distance there are no buildings fronting upon said street, save four inexpensive houses, and that some of them were not there when the street was ordered paved; that all of the property owners on both sides of said street between said points were opposed to said improvements being made at their expense, and that there was no necessity therefor, “so far as the property or interests of the persons owning property along the side of the street are concerned.” The necessity for the work must be determined from all of the facts and circumstances, and from the public use of the street. Here was a public street within the limits of a populous city, and it appears from the allegations of the pleadings that it was opened as a public highway by the board of supervisors in 1886, and prior to the time the territory embracing it was added to the city; that plaintiff's lots were platted and the plat filed in 1886; that in 1890 this territory became a part of the city, and in 1891 the city council ordered the improvements made; that the street was improved and worked by the proper authorities from 1886 to 1890; that it was used largely by vehicles passing between the main portion of the city and the fair grounds; that it was a dirt road, and dusty in dry weather; that large numbers of people visit the fair each year, and this street is and has been the most direct and convenient highway to said grounds for wagons, horses, and cattle, and for persons having them in charge. It fairly appears that this street had been a public thoroughfare ever since it was first opened. How extensively it had been used by the public generally, except at fair times, does not appear. In the absence of allegations of actual or intentional fraud on the part of the council, it clearly appears from the foregoing facts that no improper benefit was contemplated by that body in its action. The only benefit arising from the improvements, aside from that accruing to the abutting lot owners, was that which would accrue to the general public in having adequate accommodations on and over this street. Counsel for appellant seem to measure the necessity for these improvements solely by the wants and necessities of the abutting lot owners. This is not the true or only test of such necessity. If it was, then it may well be doubted whether half of the streets in the city of Des Moines would ever be paved, curbed, or sewered. It is a fact known to all men at all conversant with such matters that, as a rule, property owners object to such improvements because they entail a great expense, which must be borne by them, and the benefits arising from them accrue, not only to the lot owners, but likewise to the general public. In the absence of allegations to the contrary, it may well be assumed that this street was used by people from the country as a means of access and egress to and from the city. For aught that appears, it was in constant use by citizens. There is no allegation that it was not so used, and we are not warranted in saying that it was not because of the allegation that the improvements were unnecessary so far as the abutting lot owners were concerned. It appears that the property owners protested against the improvement. It would seem, therefore, that it must have been ordered after a full hearing and consideration. As we have said, it does not appear how much this street was used, except during fair time; nor does it appear to what extent the territory adjacent to the street, but not immediately abutting upon it, is settled or occupied, nor whether the people, if any, living within such territory use this street. Now, the use of the street, whether at fair time or at other times, by nonresidents, is a public use, and, in a proper sense, just as much for city purposes as its use by people living upon it, or by those living within the territory contiguous to it, or by those who may live in the country and use it in going to and from the business portion of the city. The obligation of the city to maintain its streets in proper repair is no less to nonresidents who may use them than it is to residents of the city. Its liability for an injury by reason of its negligence in keeping the street in repair would be the same in either case. Under all of the facts recited in the petition, we discover no reason for saying that the action and determination of the council was not fairly made, nor does it appear that it was made under such circumstances as that it can properly be said that their action was oppressive. True, it is oppressive in its effect, in the sense that all public improvements which involve the expenditure of large sums of money by property owners are felt to be oppressive; but that is not the oppression which will warrant us in overturning the action of the proper municipal body, which has acted within its powers, and fairly, and without any fraudulent view or intent. Such burdens, when fairly laid, must be borne, and their necessity is not to be determined alone by their effect upon, or the amount of burden thereby cast upon, the property owner. If, in fact, such improvements be required for the public good, the burden is one necessarily incident to the ownership of property in cities. We have said that the necessity for the improvement is not to be determined alone from its benefit to the abutting lot owners. We do not consider it necessary to enter into an elaborate discussion of the question as to whether or not a special assessment must be based...