Gallaher v. Garland
| Decision Date | 17 December 1904 |
| Citation | 101 N.W. 867,126 Iowa 206 |
| Parties | J. A. GALLAHER, Administrator, substituted plaintiff for J. H. GALLAHER, Deceased, Appellant, v. HENRY GARLAND, JR., Treasurer, ET AL., Appellees |
| Court | Iowa Supreme Court |
Appeal from Greene District Court.--HON. F. M. POWERS, Judge.
SUIT in equity to enjoin the sale of certain lots by defendant Garland, county treasurer, for the amount of assessments levied against them by the city council of the city of Jefferson for grading, graveling, and macadamizing streets in front thereof. The trial court dismissed the petition, and plaintiff, Gallaher, appealed. After the appeal was taken plaintiff died, and his administrator has been substituted.--Reversed.
Reversed and remanded.
Gallaher & Graham, for appellant.
Wilson & Albert, for appellees.
Many reasons are presented why the lots should not be sold to pay the assessments levied against them, but as one seems to be sufficient to sustain plaintiff's action we shall consider but that one. The city council of the city of Jefferson passed a resolution for grading and graveling certain of its streets. Notice of a graveling resolution was given as provided by law, and the time and place fixed for the lodging of objections thereto. No objections having been filed, the proposition was finally adopted, and it was ordered that the expense of the improvement be taxed to the abutting property. Notice for bids for the graveling of the streets was thereupon given, and bids were received at the time fixed in the notice; and the contract for the work including the grading of the streets, was awarded different contractors. The original contracts are before us, and they provide for the payment of an omnibus sum for doing the work of grading and graveling the streets. One was for the sum of $ 177 and the other for $ 350. Thereafter a resolution was passed to the effect that the cost of graveling and sub-grading be taxed to abutting property. Notice thereof was given, and a time fixed therein for those who were interested to appear and file objections. No one appearing, the cost of the entire work was assessed against abutting property according to lineal frontage. These taxes were certified to the county authorities as by law provided, and the county treasurer was about to sell plaintiff's lots, which abutted on the improved street, for the amount of the assessments levied against them, when this action was brought. It appears without controversy that not only the resolutions passed by the city, but the contracts made for the improvement, contemplated and provided for the grading or cutting down of the streets in some cases as much as fourteen inches, and in other places there was to be a substantial fill to bring the street to the established grade. This grading was much more than was necessary to make way for the graveling, and was done for the purpose of bringing the streets, when graveled, to the established grade. Plaintiff's intestate did not appear before the city council, because he did not understand that the grading of the streets was to be included in the improvement, and had no idea that an attempt would be made to charge him therewith, until after the work was completed. None of the published notices indicated that grading of the streets at the expense of abutting property owners was proposed. They all referred simply to the graveling of the streets. Plaintiff's intestate offered to pay his proportion of the expense of graveling the streets, and during the trial renewed his offer, but both were refused. He did not, as we have said, at any time appear before the council to object either to the improvement or to the assessment against his property.
The city had no authority to do any grading of its streets except such as was necessary for the purpose of receiving the gravel, and to charge the expense thereof to abutting property owners, and in so far as it attempted to do so its action was...
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