Hemenway v. Craney

• Decision Date: 04 August 1922
• Citation: 208 P. 407,36 Idaho 11
• Parties: FRANK E. HEMENWAY, Appellant, v. C. W. CRANEY, A. B. ANNIS and COURT M. SARGENT, as Commissioners of Drainage District No. 2 of Benewah County, Idaho, C. G. CROMWELL, Clerk of the District Court, and Ex-officio Auditor of Benewah County, Idaho, VERA FULLER, County Treasurer and Ex-officio Tax Collector of the County of Benewah, Idaho, Respondents
• Court: Idaho Supreme Court

208 P. 407

36 Idaho 11

FRANK E. HEMENWAY, Appellant, v. C. W. CRANEY, A. B. ANNIS and COURT M. SARGENT, as Commissioners of Drainage District No. 2 of Benewah County, Idaho, C. G. CROMWELL, Clerk of the District Court, and Ex-officioAuditor of Benewah County, Idaho, VERA FULLER, County Treasurer and Ex-officioTax Collector of the County of Benewah, Idaho, Respondents

Supreme Court of Idaho

August 4, 1922

DRAINAGE DISTRICTS-ASSESSMENT FOR IMPROVEMENTS-INJUNCTION-ESTOPPEL.

One who has full knowledge of the financial affairs of a drainage district and of the manner in which its business is being carried on, who knows that an improvement that is being constructed is costing an amount greatly in excess of the original estimate and that the additional expense must be discharged by a tax upon his and other lands of the district and who acquiesces in and requests and encourages such additional expenditures, knowing that no steps have been taken to submit to the district court an additional estimate of such expenditures, is estopped to question the validity of an assessment to cover such additional expenditures after the improvement is completed and his land has been greatly benefited thereby.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County.Hon. W. F. McNaughton, Judge.

Action to restrain collection of assessment levied by Commissioners of Drainage District.Judgment for defendants.Affirmed.

Judgment of the district court affirmed, with costs to respondents.

Potts &amp Wernette, for Appellant.

The assessments were void because they were made without notice to the appellant or an opportunity for him to be heard.(Ireland v. Rochester,51 Barb.(N. Y.)414;Londoner v. Denver,210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103;Denver v. State Investment Co.,49 Colo 244, 112 P. 789, 33 L. R. A., N. S., 395;Arnold v Knoxville,115 Tenn. 195, 90 S.W. 469, 3 L. R. A., N. S., 837;Adams v. Shelbyville,154 Ind. 467, 77 Am. St. 484, 57 N.E. 114, 49 L. R. A. 797;Violett v. Alexandria,92 Va. 561, 53 Am. St. 825, 23 S.E. 909, 31 L. R. A. 382;Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569;Argyle v. Johnson,39 Utah 500, 118 P. 487;Lower Kings River Reclamation Dist. v. Phillips, 108 Cal. 306, 39 P. 630, 41 P. 335.)

Appellant is not estopped to question the legality of the assessments.(Birdseye v. Clyde,61 Ohio St. 27, 55 N.E. 169;2 Cooley on Taxation, 3d ed., p. 1519;Wright v. Thomas,26 Ohio St. 346;Lewis v. Symmes,61 Ohio St. 471, 76 Am. St. 428, 56 N.E. 194;Morse v. Omaha,67 Neb. 426, 93 N.W. 734;Harmon v. City of Omaha,53 Neb. 164, 73 N.W. 671;Buckley v. Tacoma,9 Wash. 253, 37 P. 441;St. Joseph v. Dillon,61 Mo.App. 317;Tinsman v. Monroe,90 Mich. 382, 51 N.W. 460;Scudder v. Jones,134 Ind. 547, 32 N.E. 221;Birdseye v. Clyde,61 Ohio St. 27, 55 N.E. 169;Crawfordsville Music Hall Assn. v. Clements,12 Ind.App. 464, 39 N.E. 540, 40 N.E. 752;Keese v. Denver,10 Colo. 112, 15 P. 825;Newton County etc. Co. v. Nofsinger,43 Ind. 566;Boatman v. Macy, 82 Ind. 490.)

"A plea of estoppel has been sustained only where the property owner has had notice of an intention to tax his property for a portion of the cost of constructing the improvement, and an opportunity to present objections thereto."(Troyer v. Dyar,102 Ind. 396, 1 N.E. 728;Hager v. City of Burlington,42 Iowa 661;Spaulding v. Baxter,25 Ind.App. 485, 58 N.E. 551;Pennsylvania Co. v. Cole, 132 F. 668.)

"Where an assessment for a public improvement is void by reason of any inherent defect, either of jurisdiction or of procedure, the property owner cannot become estopped to deny its validity."(City of Birmingham v. Wills,178 Ala. 198, Ann. Cas. 1915B, 746, 59 So. 173;Hutchinson v. City of Omaha,52 Neb. 345, 72 N.W. 218;Hall v. Moore, 3 Neb.(Unof.)574, 92 N.W. 294;Coggeshall v. City of Des Moines,78 Iowa 235, 41 N.W. 617, 42 N.W. 650;App v. Stockton,61 N.J.L. 520, 39 A. 921;Strout v. Portland,26 Ore. 294, 38 P. 126;Smith v. Minto,30 Ore. 351, 48 P. 166;Fox v. Middlesborough Town Co.,96 Ky. 262, 28 S.W. 776;Strout v. Portland,26 Ore. 294, 38 P. 126;Dyer v. City of Bandon,68 Ore. 406, 136 P. 652;Jones v. City of Salem,63 Ore. 126, 123 P. 1096;Edmonds Land Co. v. City of Edmonds,66 Wash. 201, 119 P. 192;Smith v. Minto, 30 Ore. 351, 48 P. 166.)

Even if a party is estopped as to one portion of the proceedings, he is not estopped as to others.(Consolidated etc. Min. Co. v. Struthers,41 Mont. 551, 111 P. 150;McQuillin, Mun. Corp., secs. 2120, 4515;City of New Whatcom v. Bellingham Bay Imp. Co.,10 Wash. 378, 38 P. 1024; 28 Cyc 1141, 1149;Barber Asphalt Paving Co. v. Watt, 51 La. Ann. 1345, 26 So. 70, 72.)

Ezra R. Whitla and W. D. Keeton, for Respondents.

It is the duty of the property owner to keep informed regarding improvement of his property.(Boatman v. Miles,27 Wyo. 481, 199 P. 933;City of Elkhart v. Wickwire,121 Ind. 331, 22 N.E. 342;City of Ardmore v. Appollos,62 Okla. 232, 162 P. 211;Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841.)

One who accepts benefits cannot repudiate obligation to pay.(Edwards & Walsh Const. Co. v. Jasper Co.,117 Iowa 365, 94 Am. St. 301, 90 N.W. 1006;Byram v. City of Detroit,50 Mich. 56, 12 N.W. 912, 14 N.W. 698;Gibson v. Owens,115 Mo. 258, 21 S.W. 1107;Ross v. Stackhouse,114 Ind. 200, 16 N.E. 501;Atwell v. Barnes,109 Mich. 10, 66 N.W. 583;Ritchie v. City of South Topeka,38 Kan. 368, 16 P. 332;People v. Many,89 Hun, 138, 35 N.Y.S. 78;Powers v. Town of New Haven,120 Ind. 185, 21 N.E. 1083;State v. Johnson, 111 Minn. 255, 126 N.W. 1074, 1075.)

Property owner is estopped where he stands by and sees improvements made.(Fitzhugh v. City of Bay City,109 Mich. 581, 67 N.W. 904;Farr v. City of Detroit,136 Mich. 200, 99 N.W. 19;Brewer v. City of Elizabeth,66 N.J.L. 547, 49 A. 480;McKnight v. City of Pittsburgh,91 Pa. 273;Pabst Brewing Co. v. City of Milwaukee,126 Wis. 110, 105 N.W. 563;Wingate v. City of Astoria,39 Ore. 603, 65 P. 982;Gibson v. Owens, supra;Busenbark v. Clements,22 Ind.App. 557, 53 N.E. 665;Board of Commissioners v. Plotner, 149 Ind. 116, 48 N.E. 635.)

The property owner must act promptly and pursue his remedies at once or he will be denied relief where he receives benefits.(Partee v. Cleveland T. Paving Co.(Okl.),172 P. 945;City of Muskogee v. Rambo,40 Okla. 672, 138 P. 567;Damron v. City of Huntington,82 W.Va. 401, 96 S.E. 53, 9 A. L. R. 623; Hamilton on Special Assessments, par. 732;Palmer v. Stumph,29 Ind. 329;City of Bartlesville v. Holm,40 Okla. 467, 139 P. 273, 9 A. L. R. 627;State v. City of Jersey City, 52 N.J.L. 490, 19 A. 1096.

Where expenditure exceeds estimate the property owner must act at once.(Secs. 4504,4506,4512,4513, C. S.)

The appellant had his day in court to be heard upon the question as to the proportion his land should pay, and the benefits, if any, which it would receive.

The question of notice is not in the case, as the notice upon the assessment of benefits was given and the assessment of benefits was determined.The whole matter of the levy of subsequent taxes after the original assessment is purely mathematical and no discretion is given the commissioners in saying what proportion any land owner shall pay, as that has been settled by a final decree of the court.(Gillette v. Denver,21 F. 822.)

DUNN, J. Rice, C. J., and McCarthy, J., concur.

OPINION

DUNN, J.

This action was brought by appellant to restrain the collection by respondents of the sum of $ 3,950.94, which respondents claimed to be due from appellant under an assessment made by the commissioners of Drainage DistrictNo. 2 of Benewah county, Idaho, against the lands of appellant to take up certain outstanding warrants issued by said district and to quiet title to said lands against the claim of lien for said amount asserted by said drainage district.Of this amount appellant claims $ 3,415.69 to have been levied without legal authority.A temporary injunction was granted by the trial court restraining the collection of any portion of said sum except the amount due from appellant for the payment of interest on bonds, and twenty per cent of the remainder of said assessment.Thereafter an amended and supplemental complaint was filed by appellant attacking an assessment levied by said drainage district commissioners in the year 1919 by which it was attempted to collect from appellant the sum of $ 3,196.25, in addition to the amount claimed in the original complaint.Of this latter assessment appellant claimed $ 2,661 to have been levied without legal authority and the court restrained the collection of any part of said assessment levied in the year 1919 except $ 535.25 for interest and twenty per cent of the remainder of said assessment.The case was tried before the court without a jury, and after making findings of fact and conclusions of law the court entered judgment for the respondents sustaining the validity of the assessments made in the years 1918 and 1919, but denying the right of the drainage district to collect more than twenty per cent of such assessments in any one year From this judgment appeal was taken.

Drainage DistrictNo. 2 of Benewah county, Idaho, was organized on April 17, 1916.It contains a little less than 500 acres of land, all of which was owned at the time of the organization of the district by Fred Russell, H. H. Hibbard, George Murphy, E. M. Parker and Bertha Urbach.Some time after the organization of the district a corporation was formed under name of the Northern Securities Company, which acquired the land owned by Parker and Hibbard and nearly all of that owned by Murphy, and in October, 1917, appellant entered into a contract to purchase...