In re Paving Streets in Floyd Park Addition, 35509.

• Decision Date: 08 January 1924
• Docket Number: No. 35509.,35509.
• Citation: 197 Iowa 915,196 N.W. 597
• Parties: IN RE PAVING STREETS IN FLOYD PARK ADDITION, SIOUX CITY. APPEAL OF HAWKEYE LAND CO.
• Court: Iowa Supreme Court

197 Iowa 915

196 N.W. 597

IN RE PAVING STREETS IN FLOYD PARK ADDITION, SIOUX CITY.

APPEAL OF HAWKEYE LAND CO.

No. 35509.

Supreme Court of Iowa.

Jan. 8, 1924.

Appeal from District Court, Woodbury County; Miles W. Newby, Judge.

On May 3, 1919, the owners of property abutting and adjacent to certain named streets of Sioux City presented to the city council a petition for the paving of said streets and that the cost of such improvement be assessed to the property as by law provided. This petition was signed by the appellant in this case and contained a provision or statement as follows:

“We further agree to waive all claims for any excess of the paving over and above twenty-five per cent. of the actual value of the property.”

This petition was acted upon favorably by the council and the paving was constructed. The record discloses no contest by any property owner and no irregularity or jurisdictional defect in the proceeding, and no objection was made thereto until the matter of spreading the assessments of the cost upon the property subject to such charge came on for consideration. The schedule of assessments made by the engineer and approved by the council included some 17 or more lots belonging to the appellant and represented an aggregate of $7,591.54. Appellant objected thereto on the following grounds: (1) The assessments exceed the value of lots; (2) they were not made according to the benefits conferred; (3) were levied according to area without regard to benefits as compared with other lots in the district; (4) are not distributed ratably and proportionately with the benefits; and (5) that the city owns a strip of ground within the paving district wholly omitted from the assessment. These objections were overruled, and the land company appealed to the district court from such ruling. On the hearing below appellee offered the testimony of a real estate dealer and of one of its managing officers to the effect that certain of the lots in question, owing to their elevation above the street level, were of very little value; that some of them received no actual benefits from the paving; and that the benefits to others of said lots were largely over assessed. No other witnesses were examined. Upon consideration of this showing, the trial court entered a judgment or decree setting aside and canceling entirely the assessments on eight of the described lots and materially reducing the charge upon the remaining lots. From this ruling the city of Sioux City has appealed. Reversed.

Fred H. Free and E. G. Smith, both of Sioux City, for appellant.

Milchrist, Jepson, Pitkin & Jepson, of Sioux City, for appellees.

The following opinion was written by the late Justice WEAVER and is now adopted as the opinion of the court:

PER CURIAM.

[1][2][3] It is to be kept in mind from the outset of this discussion that aside from the alleged excess and inequality of the special assessments, the authority of the council to order the paving and cause the work to be done stands unchallenged. Except in the respect mentioned, the regularity of the proceedings is unquestioned. No complaint is made of the quality of the work or that the paving as made is anything other than was contemplated by the petitions therefor. The sole ground on which the payment of the assessment is contested in this court is that it is excessive and unequal, and to that phase of the inquiry we now direct our attention. It is doubtless true that the situation and topography of the property in question is such as to unfavorably affect its value and to render it more or less difficult of access, but it was platted into city lots within the taxing zone of the paving district and was doubtless purchased and held by the land company waiting the time when by the growth of the city and by the unearned increment arising from its evolution such lots would acquire a value to the profit of their owners. With full knowledge of the situation and of the condition and nature of this property, and doubtless with the purpose of hastening such development and accelerating the harvest of anticipated profits, the appellee company not only solicited and petitioned for the paving of the streets, but as an inducement to such action voluntarily and in writing waived the benefit of the statute which limited to 25 per cent. the liability of its property to special assessment for that purpose. As reasonable men of ordinary judgment and experience, they knew it was not only likely but morally certain that the cost of the pavement which they petitioned for would be greatly in excess of the 25 per cent. limit and expressed their willingness and desire to assume that burden in consideration of an improvement which they believed would be a factor in promoting the value of their holdings in that taxing district. Having obtained the desired improvement, they are estopped by the most elementary principles of equity from claiming protection or immunity under that statute. This estoppel did not, however, inhibit their right to insist that their assessments should not be unreasonably excessive if such abuse of power be shown. The jurisdiction and authority of the council having been regularly invoked and exercised, the burden of impeaching the assessments is upon the appellee. This the appellee seeks to establish by the assertion that the tax levied is (1) greater than the actual value of the property, and (2) is greater than the special benefits conferred, and in support of this contention they produce the testimony of two witnesses who state their estimate or opinion of the value of the several lots with and without the improvement. This claim and arguments of appellee's counsel proceed upon a mistaken theory of the principles underlying the law governing special assessments. True, such charges are to be supported, if at all, on the theory of special benefits to the property on which the burden is laid; but it is not true, as appellee appears to think, that to sustain the legality of such tax the resulting benefits must be immediately reflected in the present market value of the taxed premises. This court has said--

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