Fuche v. City of Cedar Rapids
| Decision Date | 12 February 1913 |
| Citation | 139 N.W. 903,158 Iowa 392 |
| Parties | JOSEPH J. FUCHS, Appellant, v. THE CITY OF CEDAR RAPIDS, IOWA, LOUIS ROTH, Mayor, L. J. STOREY, City Clerk, Appellees |
| Court | Iowa Supreme Court |
Appeal from Superior Court of Cedar Rapids.--HON. C. B. ROBBINS Judge.
ACTION to enjoin assessment for street improvements. Decree for defendant. Plaintiff appeals.
Affirmed.
Jamison Smyth & Hahnn, for appellant.
Wm Chamberlain, City Solicitor, C. F. Luberger, Assistant City Solicitor, and Don Barnes, for appellees.
On the 4th day of October, 1912, the plaintiff filed his petition in the superior court of Cedar Rapids, alleging, among other things, that on the 16th day of August, 1912, the city council of Cedar Rapids passed a resolution of necessity declaring that, for resurfacing with sheet asphalt certain streets and avenues, a public necessity existed within the city, among which streets and alleys was Second avenue east from Fourteenth street to Seventeenth street; the resurfacing to consist of removing the present asphalt wearing surface and binder course from a five-inch concrete base, which now lies in said street, said concrete base being a part of the present asphalt paving existing upon said avenue, and resurfacing the said five-inch concrete base with a one-half inch binder course and one and one-half inches wearing surface of sheet asphalt; that the said resolution of necessity further provided that the cost of the work aforesaid should be assessed against the property abutting upon said improvement; that thereafter, and in pursuance of said resolution of necessity, the city council passed a resolution ordering that said street be so resurfaced, and that the cost of the same be assessed as a special tax against the property abutting thereon; that thereafter the city council ordered and directed the city clerk to advertise for proposal and bids for the construction of the same; that the city clerk did so advertise; that thereafter, in due form, the city council passed a resolution awarding said contract to the Ford Paving Company, and directed the mayor and city clerk to enter into a contract with said company for the construction of said improvements, to be paid for as aforesaid by such special assessment, and plaintiff alleges that, unless restrained by the court, such contract will be entered into, and the city bound thereby; that the plaintiff is the owner of lots lying upon Second avenue between the points aforesaid, and abutting upon the improvements so ordered to be made, and will be liable to special assessment for said improvements. Plaintiff further says that his lot aforesaid was assessed with its proportionate share of the original cost of the original construction of said pavement now intended to be resurfaced, as aforesaid, and that said assessment was duly paid; that, since said pavement was originally constructed, the city has made no repairs thereon, but suffered and permitted the wearing surface to become out of repair, and out of this grows the necessity for resurfacing. The plaintiff claims that the work aforesaid does not constitute a reconstruction of said pavement, as contemplated by the statute relating to special assessments, but a mere repair; and, as such, the cost thereof is not assessable against the abutting property. Therefore the plaintiff prays for a temporary writ enjoining and restraining the defendants from entering into, or signing, any contract purporting to bind the city to cause said work to be done and the cost thereof to be assessed against the abutting property, and especially against the property of this plaintiff; and that, upon final hearing, the injunction be made perpetual.
The defendants admit each and every allegation of plaintiff's petition, but allege, in addition to said facts, that the company which originally constructed said pavement did, in the year 1908, make extensive repairs upon said pavement, and allege that said pavement, originally put in, was constructed in the year 1900 and 1901, and has been in continuous use since that time. Defendants, however, deny the legal conclusions of the plaintiff wherein the plaintiff says that the contemplated improvement complained of in this suit is not a reconstruction of said pavement, but constitutes merely a repair thereon.
This cause was tried to the court upon the pleadings, and upon the following agreed statement of facts which, so far as material to this controversy, under the issues, are as follows:
That that portion of Second avenue upon which plaintiff's lot abuts was paved in 1901, with an asphalt pavement, consisting of a four-inch foundation of concrete with a one-inch binder course composed of crushed rock and asphalt cement, and a two-inch wearing surface of sheet asphalt; that said original pavement was constructed under a contract with one R. F. Conway Company, and, upon its completion, was accepted by the city, and special assessments were levied against the abutting property, including the lot now owned by the plaintiff, to defray the cost of said improvement, and the plaintiff and his grantors have paid said special assessment so made; that the city of Cedar Rapids has never made any repairs upon said pavement, but that in 1908 the Conway Company, having a bond to so do, did make extensive repairs thereon, patching and resurfacing all places in said pavement where the wearing surface had worn through; that the bond of the said Conway Company required it to make repairs required for the period of seven years; that the sheet asphalt wearing surface upon said pavement, at the present time, is so disintegrated, decayed, and worn out as to render the pavement unfit for public travel; that the proposed improvement now in contemplation, at which this injunction is aimed, is as follows: The wearing surface and binder course now remaining upon the original concrete base of four inches are to be fully removed, taken away, and a new surface to be constructed upon the said original concrete base, to consist of one-inch binder course to be composed of crushed stone and asphaltic cement, and one and one-half inch surface of sheet asphalt, all to be done according to the plans and specifications--that it is the purpose and intention of the defendant city to levy against the abutting property, including the property of this plaintiff, the cost of the construction of said improvement, and the defendant city will so cause said improvement to be constructed, and assessments made, as aforesaid, against the property of this plaintiff, for the improvement aforesaid, unless restrained by this court.
The only portion of the plans and specifications material to be considered reads as follows:
In removing the old pavement, care must be taken not to injure the foundation. All places in the surface of the foundation, more than two and one-half inches below the finished grade of the pavement, shall be filled with new concrete mixed one part Portland cement to four parts clean river sand. Where old concrete is too high, it shall be cut down to two and one-half inches below the finished grade of the pavement.
It will be noticed from the foregoing statements that there is no fact controversy here, and that but one question is presented, and that is: Whether or not the proposed improvements or contemplated work constitutes a reconstruction, such as is provided for and authorized in section 792 of the Code, or whether it constitutes a repair merely of the...
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