In re Jefferson Street Sewer

• Decision Date: 06 April 1917
• Docket Number: 30587
• Parties: IN RE SPECIAL ASSESSMENT JEFFERSON STREET SEWER
• Court: Iowa Supreme Court

162 N.W. 239

179 Iowa 975

IN RE SPECIAL ASSESSMENT JEFFERSON STREET SEWER

No. 30587

Supreme Court of Iowa, Des Moines

April 6, 1917

Appeal from Black Hawk District Court.--GEORGE W. DUNHAM, Judge.

THIS action, tried as in equity in the district court, is an appeal from a decree of the district court of Black Hawk County, Iowa, rendered on the 6th day of October, 1914 cancelling a special assessment against Lots 1, 2, 3, 4 and 5 in Block 42, Lots 1, 2, 3, 4 and 5 in Block 55, Lots 6, 7, 8 9 and 10 in Block 58, Lots 6, 7, 8, 9 and 10, in Block 59 all in Baker's Addition to West Waterloo, Iowa, levied by the city council of the city of Waterloo, for the construction of a combined storm and sanitary sewer along Jefferson Street in said city and in front of the said lots as a part of a general sewerage system and improvement to the said city. Several objections were filed, but it seems to be conceded by counsel on either side that the sole issue upon which the case was tried was a question of benefits under one of the objections, which is as follows:

"That the objectors received no benefit because of the construction of said sewer, for the reason that a sewer had heretofore been constructed along the said street, and same was sufficient for all abutting and adjacent property owners; that said new sewer was constructed for the express purpose of taking care of storm water and carrying same from the intersection of Eleventh and Jefferson Streets, said storm water not having interfered with or been offensive to the objectors, the owners of the property in question; that the new sewer was not needed by your objectors, or any of them, and is not a benefit to them or any of them on account of their having used the old sewer heretofore referred to, which said old sewer was sufficient in every respect for the needs and uses of your objectors."

The contention of the abutting property owners was that the construction of the improvement did not benefit their property in any amount. The trial court found for the objectors, and canceled the assessment. The city appeals.--Reversed and Remanded.

Reversed and Remanded.

Alfred W. Mullan, for appellant.

H. B. Boies, E. J. Wenner and Mears & Lovejoy, for appellees.

PRESTON, J. GAYNOR, C. J., WEAVER and EVANS, JJ., concur.

OPINION

PRESTON, J.

On October 2, 1912, the city of Waterloo entered into a contract for the construction of a combined storm and sanitary sewer 24 inches in diameter, from Eleventh Street to Thirteenth Street on Jefferson Street, it being found that the existing sewer, 12 inches in diameter, along the said street was inadequate and insufficient for the needs of the property owners and of the city. The beginning of the sewer on Eleventh Street is about 7 blocks from the center of the business district of West Waterloo, and both Eleventh and Jefferson Streets are paved with asphalt paving at this point. It appears that, some 12 years before, a 12-foot sewer, known as the Dry Run Sewer, had been constructed in the vicinity, but this is not in controversy in this case. Various sewers along the course of the Dry Run Sewer empty into it. It is contended by appellees that this large sewer was a storm sewer primarily, and relieved conditions in that part of the city from annoyances due to surface water, and that the properties in question in this case were not affected by surface water after the Dry Run Sewer was constructed, except Manning's store, and it is contended that, as to this last named property, the water at the Manning corner caused just as much damage to that property after the completion of the new 24-inch sewer as before it was constructed, and there is evidence to that effect. Appellee contends, also, that no other property on Jefferson Street between Eleventh and Thirteenth was ever flooded or interfered with by freshets or surface water except the Manning store, and they say the Manning property had in the rear an old stone quarry or cellar hole, which, at time of freshets, usually filled with water. Manning's corner is near the intersection of Jefferson and Eleventh Streets, and is west or northwest of the other properties in controversy. Prior to the construction of the sewer in question, a 12-inch sewer had been laid along this same street, with which all property owners had connected, or had a right to connect, for sewer privileges. The new sewer was constructed parallel with the 12-inch sewer along the same street. The assessments complained of are for the cost of this second sewer against the abutting property. It is contended by appellees, and seems to be conceded by appellant, that the 12-inch sewer was fully adequate for all sanitary purposes, but appellant contends that it was inadequate for even ordinary rains, and failed to carry off storm water and surface water, and, in view of...