Freese v. City of Pierre
| Decision Date | 29 July 1916 |
| Docket Number | 3886. |
| Citation | 158 N.W. 1013,37 S.D. 433 |
| Parties | FREESE v. CITY OF PIERRE. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hughes County; John F. Hughes, Judge.
Action by John M. Freese against the City of Pierre, S.D. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.
Boyce Warren & Fairbank, of Sioux Falls, for appellant.
Karl Goldsmith, of Pierre, for respondent.
At this time the city council adopted a motion to the effect that the cost of grading be divided between the two districts as nearly as possible on the basis of 20 cents a yard for the "hill" district and 32 cents a yard for the "flat" district. The contract was fully and acceptably completed on the part of the contractors. The plaintiff became the assignee of the contractors. The city engineer returned an estimate for special assessment showing the total cost of the Fanebust contract to be $44,390.19. Of this amount he charged $17,073.15 to the "hill" district, or approximately $1.16 per front foot. He charged the remainder, $27,317.04, to the "flat" district, or approximately $1.78 per front foot. The city council was not satisfied with this estimate and required the engineer to add to the assessment in the "flat" district the sum of $7,397.15 for filling streets theretofore voluntarily done by property owners, amounting to said sum on the basis of 42 cents per cubic yard, and for filling streets done by one Biewer $2,397.35. Some of the earth had been dumped in the streets by property owners 20 years previously. The amounts were determined by measuring the excavations in the basements of the property owners, and the price of 42 cents per yard was not based on the cost to the property owners of excavating their basements, but was based on the cost of filling the streets in the "flat" district under the Fanebust contract. Biewer had previously graded certain other streets and had placed surplus earth in some of the streets covered by the present contract under a verbal understanding that the city would pay him for the overhaul. Thereupon, the city engineer, in August, 1909, returned his estimate for assessment under the Fanebust contract, the "hill" district being charged the same as before, but the above additional sums were added to the charge against the "flat" district, making a total assessment in the "flat" district of $37,111.54, or approximately $2.33 per front foot. This assessment was approved by the city council, and a special assessment roll was filed with the city treasurer. It may properly be observed that these proceedings from the beginning up to this point exhibited a most flagrant disregard of law on the part of the city council. Some of the assessments were paid, and the money so received by the city was paid partly to plaintiff, partly to Biewer, and partly to property owners who had done their own filling. The assessments on the lots involved in this action, and other lots, were not paid, and at a city treasurer's sale for delinquent special assessments these and other lots were struck off and sold to the city of Pierre for want of other bidders, and certificates of sale were issued thereon to the city of Pierre. Some of the certificates were assigned to property owners to pay them for the filling of the streets done by them. The certificates covering the lots involved in this action were assigned to plaintiff. No redemptions from these sales have ever been made, and no deeds have ever been issued on said certificates involved in this action. In a previous action in the circuit court of Hughes county, one of these certificates was held to be illegal and void.
The present action was begun by plaintiff in August, 1913. The defendants were the city of Pierre, 18 property owners, the county of Hughes, and all persons unknown "who have or claim to have any estate or interest in or lien or incumbrance upon the premises described in the complaint." The complaint sought alternative relief. It asked that the rights of the respective parties be determined: (a) That if the assessments were found to be valid they be so declared; (b) that if found invalid the premises be declared to be subject to reassessment, and that the city of Pierre be adjudged to make a reassessment; (c) that, if found invalid and not subject to reassessment, the city of Pierre be adjudged to pay plaintiff the amount due him. The city of Pierre, the county of Hughes, and 5 of the 18 property owners made answer to the complaint. Trial was had to the court. Findings of fact and conclusions of law were made, finding the assessments to be void; determining the amount due plaintiff to be $4,372.36, with interest from September 7, 1909; determining that the method of combining the work in the two districts was more economical than if it had been done under separate contracts for each street, and that the assessment of 20/52 of the entire cost of the Fanebust contract to the "hill" district and 32/52 to the "flat" district was equitable, and that each of the lots was benefited in excess of the amount of its assessment; determining the total amount of a reassessment in the "hill" district under the Fanebust contract to be the same as determined by the city authorities plus 7 per cent. interest; determining the total amount of a reassessment in the "flat" district under the Fanebust contract, including the Biewer "fill" and the property owners' "fill," to be the same as determined by the city authorities plus 7 per cent. interest determining the amount due on each lot in controversy by adding interest to the original assessment; and determining the priorities between these reassessment liens and the tax liens and tax deeds held by the county of Hughes. Judgment was entered adjudging: (1) That the special assessments, the special assessment sale, and the certificates of sale issued thereon were void and the same were vacated and set aside; (2) that there was due and owing plaintiff the sum of $6,081.08 on the date of the judgment to wit, $4,372.36, with interest from September 7, 1909; (3) "that the lots and premises described in the findings of fact, herein and hereinafter described, be and the same are hereby reassessed accordingly as the same were benefited for the local improvement upon which said special assessments...
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