In re Appeal of McLain

• Decision Date: 16 March 1920
• Docket Number: 33167
• Citation: 176 N.W. 817,189 Iowa 264
• Parties: IN RE APPEAL OF W. D. MCLAIN
• Court: Iowa Supreme Court

176 N.W. 817

189 Iowa 264

IN RE APPEAL OF W. D. MCLAIN

No. 33167

Supreme Court of Iowa, Des Moines

March 16, 1920

REHEARING DENIED JULY 6, 1920.

Appeal from Story District Court.--R. M. WRIGHT, Judge.

IN the district court, this was an appeal by McLain from an order of the city council of Ames, assessing drainage benefits against a portion of his farm. The district court awarded him partial relief. From such order of the district court, the city council has appealed. In the discussion of the case, we shall refer to McLain as the plaintiff, and to the city council as the defendant.--Modified and affirmed.

Modified and affirmed.

John Y Luke, for appellant.

Lee Garfield & Coyle, for appellee.

EVANS, J. WEAVER, C. J., SALINGER and STEVENS, JJ., concur.

OPINION

EVANS, J.

I.

The drainage improvement under consideration herein was a storm sewer. This storm sewer carried the surface water from certain highlands within the city corporation, including Graeber's Addition thereto, down to Squaw Creek, where the outlet of the sewer was constructed. From its outlet, the sewer was constructed of drain tile across the Squaw Creek bottoms, and extended up to a connection with the storm sewers and catch basin formerly constructed in Graeber's Addition. The bottom land across which it was constructed was that of plaintiff, and was a part of his farm of 231 acres. About 160 acres of this farm are included within the city corporation. The farm abuts on the south side of the Lincoln Highway, and it lies between the city proper of Ames and the Agricultural College. Contiguous to it on the west is Graeber's Addition, comprising about 60 acres of ground. This addition was laid out with a view of furnishing a residence location convenient to the college. The north part of plaintiff's farm is located in the north one half of the northwest quarter of a certain Section 10. The main sewer crosses it in an east and west direction. A branch thereof runs northwesterly and southeasterly. The location of the sewer is within the north 57 acres of plaintiff's farm. For the purpose of constructing the improvement, the city council established a drainage district, pursuant to the statute. The boundaries of the district were made to include the north 57 acres of the northwest quarter of said Section 10, and all of Graeber's Addition, comprising about 60 acres. This was the total area of the drainage district. The cost of the improvement was a little less than $ 8,000. The benefits assessed against the lands of plaintiff were $ 2,011. Originally, this apportionment was entered in lump against the plaintiff's land, without specifying any description. Later, and in response to plaintiff's objections filed, the apportionment was divided, so that $ 1,299 thereof was entered against the northwest quarter of the northwest quarter of Section 10, except 5 acres, and the balance thereof was entered against the northeast quarter of the northwest quarter. The plaintiff filed extended and specific objections to the assessment, all of which, however, were reducible to the ultimate objection that the assessment against him was excessive.

The particular fact in the case which has given the litigants their greatest trouble, and to which their briefs have been very largely directed, is that, in fixing the amount of the assessment against plaintiff's lands, account was taken, as alleged, of benefit accrued to land outside of the district. It was deemed by the city council that the plaintiff received benefit to the extent of $ 37.10 an acre on the north 57 acres of his farm, and the computation was made, as alleged, upon that basis. Only 39 acres, however, of the plaintiff's farm were included within the district as established. That is to say, the district as established was made to include the north 57 acres of the northwest quarter of Section 10. Of this area so included, Coy owned 5 acres, and Roberts owned approximately 13 acres. The plaintiff owned the remaining 39 acres, and this was the north 39 acres of his farm. The sewer as constructed cut plaintiff's farm on a line outside of and further south than the north 39 acres, but within the north 57 acres. In explanation of this discrepancy, the defendant contends that there was a mistake in the description of plaintiff's land, made in the resolution of necessity, and that such mistake was carried through the successive proceedings of establishment; that the real intent of the city council was to include within the drainage district the north 57 acres of plaintiff's farm, and that all of its proceedings were had on that theory, and that the plaintiff knew it and acquiesced in it; that the plaintiff waived the irregularity, by failing to object thereto; and further, that the plaintiff is estopped from raising such question, because of a certain paper signed by him, known in the record as Exhibit A, whereby he agreed to the construction of the sewer across his land, and whereby he agreed to pay his proportionate share of the cost thereof.

For the plaintiff, it is contended that this discrepancy was not discovered by him until the case came into the district court; that he did not know, nor did the record in any manner indicate, that the sum total charged against him was arrived at by considering benefits to other acres of his land than those included within the district. In the district court, the plaintiff filed amendment to his petition, which was, in form, an amendment to his objections, whereby he challenged the jurisdiction of the city council to take account of benefits to acres situated outside the boundaries of the district. A motion by defendant to strike this amendment, on the ground that the objection therein made was not made before the city council, was overruled; and this is one of the grounds of reversal laid by defendant.

Counsel for both sides have filed very extensive and very able briefs on the question of jurisdiction of the city council, and whether the nature of the jurisdiction involved was such that it could not be conferred by consent of the adverse party, and furthermore, whether the irregularities of the jurisdictional procedure were such as could or could not be waived. We shall not follow counsel far into that field.

It is undoubtedly true that there is a jurisdiction which can be conferred by consent, and a jurisdiction which cannot. It is sometimes said that jurisdiction of subject-matter cannot be conferred by consent. Such a proposition is simple enough. It is also sufficiently accurate, if the meaning of its terms be thoughtfully guarded. Jurisdiction of subject-matter is easily distinguished from a personal jurisdiction. It should be further noted that jurisdiction of subject-matter is not the equivalent of a jurisdiction in rem. Jurisdiction in rem may be conferred by consent as readily as personal jurisdiction. "Subject-matter" over which jurisdiction cannot be conferred by consent has reference, not to the res or property involved in the litigation, but to the purported subject of the litigation. For instance, if a justice of the peace were to render a decree of divorce or a decree of foreclosure, it is not in the power of the litigants to confer upon him, or to enable him to acquire, jurisdiction to that end. The realm of his jurisdiction does not extend to those subjects. Jurisdiction of subject-matter has reference, not to jurisdiction in the particular case, but to jurisdiction in that class of cases. It has reference to the nature of the action and of the relief sought. The doctrine that it cannot be conferred by consent has its usual application to the acts of courts and tribunals of limited jurisdiction. Some states have criminal courts which have no civil jurisdiction; and some have civil courts which have no criminal jurisdiction. Other limitations of jurisdiction may be imposed. There is an appellate jurisdiction which is a class of its own, and which is limited, in the sense that it is contingent or conditional upon timely appeal by statutory method and within statutory time. Failure of such condition terminates its potential power to acquire thereafter any jurisdiction to review the judgment below. Consent will not confer it, nor waiver revive it. To put it in another way, jurisdiction of subject-matter is conferred by operation of law, and not by act of the parties or by procedure of the court. It cannot be ousted by act of the parties, if it exists, nor conferred by such acts, if it does not exist. Its existence antedates the particular litigation, and is not conferred by the litigation or by its procedure.

We may say, briefly and broadly, that it is ordinarily true that, where a tribunal can, by proper procedure, acquire full jurisdiction of the matter in litigation, irregularities in such jurisdictional procedure may be waived by the party in interest adversely affected, provided such waiver or consent is had before judgment. And this is so both as to jurisdiction in personam and jurisdiction in rem. As applied to this case, the city council did have jurisdiction of this class of cases. It did have power to establish a district by proper procedure, and to assess the benefits therefor. This power existed by operation of the statute. It was independent of this particular litigation, and was neither greater nor less because of it. But it was still incumbent upon the city council, in order to exercise this jurisdiction in the particular case, to acquire jurisdiction in personam and in rem by means of appropriate procedure. If the procedure fails, the jurisdiction in personam or in rem fails, and the particular litigation falls.

Whatever the lack of jurisdiction, therefore, in this case, it was not a want of jurisdiction of subject-matter. It was also...