Gingles v. City of Onawa

• Decision Date: 07 March 1950
• Docket Number: No. 47581,47581
• Citation: 241 Iowa 492,41 N.W.2d 717
• Parties: GINGLES v. CITY OF ONAWA. HOUSE et al. v. CITY OF ONAWA. HOGUE et al. v. CITY OF ONAWA.
• Court: Iowa Supreme Court

Page 717

41 N.W.2d 717

241 Iowa 492

GINGLES v. CITY OF ONAWA.

HOUSE et al. v. CITY OF ONAWA.

HOGUE et al. v. CITY OF ONAWA.

No. 47581.

Supreme Court of Iowa.

March 7, 1950.

Prichard & Prichard, of Onawa, for appellants.

John D. Beardsley, of Onawa, for appellee.

HALE, Justice.

Appeal from assessment for paving. The appeal of Bertha Gingles is combined for hearing with the appeal of Derwin M. House and Jonteel House, and of Lawrence L. Hogue and Shirley Hogue, all of whom were property owners assessed for a street improvement consisting of the widening of the paved portion of seven blocks of paving. The properties assessed are a tract belonging to Mrs. Bertha Gingles on Diamond and West Broadway streets, a tract belonging to the Houses on the corner of West Broadway and Pearl streets, and a property belonging to the Hogues on Pearl street, as described in the record.

The street widening program was ordered by the city council, and the legality or necessity of the improvement or method and manner of the improvement have not been questioned by the plaintiffs. The objections of each of the plaintiffs are first, that their property was not benefited in any way whatsoever by the said improvement, and second, that the proposed assessment was for more than the benefit derived by said property. The defendant in each case claims that the plaintiff's property was benefited in the amount of the proposed assessment. The only question, therefore, for our consideration is the question of the amount of the assessments.

All three of the properties have substantial improvements; the Gingles property being south of and close to the business section of the city. The House property also has a large eleven room house at its southwest corner and is immediately north of the business section. The Hogue property has a small house on the north side of Pearl street, facing south about one-half block west of West Broadway. The streets adjacent to all three of these properties were previously paved and the assessment was for widening the paving on these streets.

The plaintiffs called, as witnesses, several of the real estate dealers in the city of Onawa, the state inheritance tax appraisers from Monona county, and an appraiser engaged by Monona county appraising real estate. In substance, the majority of these witnesses testified that the widening of the pavement did not enhance the actual value of said properties. Some witnesses testified on cross examination that as the Gingles property was immediately adjacent to the main portion of the city and located on highway 75, the land upon which these houses are located might be considered as potential business properties, but that the new paving did not enhance the actual value of the property.

The city offered no evidence that the properties received any special benefit, but relied on the resolution levying the assessments. No witnesses, however, offered any testimony as to what actual benefits if any were conferred upon any of the three properties.

I. The court found that the act of the city council in ordering the pavement widening improvement and assessing the cost thereof on abutting property owners was a legislative determination that the improvement was necessary and that the property so assessed was benefited and that such determination of the city council creates a presumption that the property to be assessed would be benefited, and that under the law of this state one who has been assessed, such as the various plaintiffs in this case, may claim or contend that the assessment levied is in excess of the benefits derived by the property, but he cannot rebut the presumption that his property has been benefited in some degree.

We are convinced, as argued by defendant, that when a city council orders the paving of a street and provides that the cost shall be assessed upon the abutting property, it is a legislative determination that the improvement is expedient and proper and that there is a presumption that the property abutting on the improvement will be benefited thereby and that such determination cannot be set aside in a judicial proceeding. A leading authority to that effect is the case of Chicago, R. I. & P. R. Co. v. City of Centerville, 172 Iowa 444, 153 N.W. 106, 107, 154 N.W. 596, in an opinion by Justice Weaver in which he says:

'Speaking generally, there is a fair presumption that all real estate receives some degree of benefit from the permanent improvement of a street upon which it abuts. It is upon such presumption that the whole system of special assessments for local improvements is justified and sustained. Acting upon such presumption, city councils have been clothed with a certain degree of legislative power to determine when it is expedient and proper to pave any given street or streets, and to provide within certain limitations how the cost thereof shall be defrayed. This discretion includes the authority to assess such cost upon the abutting property in proportion to the benefits accruing to such property. It follows, we think, that the order of the city council, acting in accordance with the statute for the paving of the street and assessment of the cost upon abutting property, is not subject to control or interference by the courts, and (still assuming that the provisions of the statute have otherwise been observed) the question to be considered upon an appeal from the assessment made is whether the burden has been distributed or apportioned upon the several items of abutting property with due reference to the benefits they derive from the improvement. In other words, the action of the council in ordering the pavement and providing that the cost shall be assessed upon the abutting property is a legislative determination that the improvement is expedient and proper, and that the property abutting upon the improvement will be benefited thereby, and such determination cannot be set aside or overruled in a judicial proceeding. This is not inconsistent with the right of the property owner to question and have determined the regularity of the procedure by the council and the equality of the assessment. In other words, while the owner of abutting property may object that it has been over-assessed, he cannot, if the proceedings have otherwise been regular, be heard to say that it is not liable to be assessed at all. * * *

'It certainly does not mean that before such an assessment can be levied and enforced the city must be able to show that by reason of the paving the abutting property has been advanced in market value to the extent of the assessment, or point out in detail the specific way and manner in which the requisite benefits are to be realized in the future. Were such to be the rule, few, if any, schemes of local improvement at the expense of the property immediately affected could ever be accomplished. * * * the benefits to be derived in such cases are ordinarily not instant upon the inception or completion of the improvement, but materialize with the developments of the future. They are none the less benefits because their full fruition is postponed, or because the present use to which the property is devoted is not of a character to be materially affected by the improvement.'

This case was cited and quoted in part in the case of In re Special Assessment Jefferson Street Sewer, 179 Iowa 975, 162 N.W. 239, an appeal of a property owner whose property was assessed for part of the cost of a sewer. She denied liability on the ground that she received no benefit whatever. The court held as in the Centerville case. Both of these cases were quoted and approved in the case of Dickinson v. City of Waterloo, 179 Iowa 946, 162 N.W. 242. Also in Lytle v. City of Sioux City et al., 198 Iowa 848, 200 N.W. 416, the court saying: 'It is well settled that the owner of abutting property cannot, if the proceedings have otherwise been regular, be heard to say that his property has not been benefited and is not liable to assessment at all.'

II. Plaintiffs refer to the case of Chicago, B. & Q. R. Co. v. City of Chariton, Iowa, 169 N.W....