Royal v. City of Des Moines

• Decision Date: 05 April 1921
• Docket Number: 33720
• Citation: 191 N.W. 377,195 Iowa 23
• Parties: LAURA A. ROYAL, Appellant, v. CITY OF DES MOINES, Appellee
• Court: Iowa Supreme Court

191 N.W. 377

195 Iowa 23

LAURA A. ROYAL, Appellant, v. CITY OF DES MOINES, Appellee

No. 33720

Supreme Court of Iowa, Des Moines

April 5, 1921

OPINION ON REHEARING JANUARY 16, 1923.

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

THIS was an appeal to the district court from the action of the city council, levying an assessment for improvements on West Forty-seventh Street in defendant city. Plaintiff had filed her objections to the proposed assessment by the council which assessment was thereafter duly levied. The property involved was Lots 32 to 36, inclusive, of Waveland Place. The appeal to the district court was tried in equity. After hearing, the trial court ordered that the assessment against Lots 33, 34, and 36 should stand as originally made by the council; that the assessment against Lot 32 should be reduced from $ 520.05 to $ 450; and that the assessment against Lot 35 should be reduced from $ 441.96 to $ 325. Plaintiff appeals.

Affirmed.

Royal & Royal, Parrish, Cohen & Guthrie, and George Harnagel, for appellant.

Miller Griffiths, Weaver & Jordan, for appellee.

PRESTON, C. J. WEAVER, EVANS, STEVENS, ARTHUR, and FAVILLE, JJ., concur.

OPINION

PRESTON, C. J.

The property of plaintiff was unimproved acreage, and about 612 feet long and 278 feet wide. Forty-seventh Street, upon which plaintiff's lots about, is not paved. Forty-eighth Street is west of these lots. Lots 32, 33, and 34 run north and south, and Lots 35 and 36, east and west. A part of the east side of 32 and the east end of 35 and 36 were taken in opening Forty-seventh Street, which still leaves Lot 32 about 100 feet wide, and 370 feet long, north and south, and Lots 35 and 36 about 200 feet long, east and west. A part of the plat covering these properties is here set out.

[SEE PLAT IN ORIGINAL]

Though these lots were somewhat rough, the evidence shows that property in this vicinity, and of this particular character, had increased in value considerably for a year or two before the assessment was made, and more thereafter. The assessment roll showed that each of the lots was assessed at the actual valuation of $ 720, but the evidence of all the witnesses is that they were worth more than this prima-facie value. Plaintiff's husband and agent estimated the value of Lot 32 at $ 800; Lot 33, $ 800; Lot 34, $ 1,200 to $ 1,300; Lot 35, $ 700; Lot 36, $ 900 to $ 1,000. Her witness Wells, a real estate man, who perhaps was not so well posted as to sales and values in that neighborhood, gave the values of the same lots, respectively, at $ 950, $ 850, $ 1,500, $ 700, and $ 900 to $ 1,000. Defendant's witness, a real estate man, disinterested, gave the values of the same lots, respectively, at $ 3,000, $ 2,500, $ 4,000, $ 3,000, $ 3,200. The assessment originally made by the council of what remained of Lot 32 was $ 520.05; Lot 33, $ 89.65; Lot 34, $ 44.83; and the assessment of the remainder of Lots 35 and 36 was made at $ 441.96 each. This original assessment was reduced by the district court on Lots 32 and 35, as before stated. A strip 22 1/2 feet wide along the east side of plaintiff's lots, with parts of lots south of hers, was condemned under the resolution hereinafter referred to, and the condemnation jury fixed the value on the part taken of plaintiff's lots at $ 525, which has been paid to plaintiff. The issues raised by the written objections to the assessment and in the petition on appeal to the district court were somewhat complicated and numerous, but are summarized as follows: Whether the council complied with the provisions of the statute in regard to preliminary resolutions, notices, and advertisements for bids in connection with the work to be done; second, whether the expense of grading the street could be added to the cost of opening and extending the street, and the cost of grading be assessed against the property; third, whether the cost of said improvement could be legally assessed against that part of plaintiff's property which was more than half way from the improved street to the next street; fourth, whether the assessment was made according to benefits, and not in excess thereof, and whether in excess of 25 per cent of the actual value of the lots at the time of the assessment.

1. The first and second propositions before stated are so related in the record as that they may, for convenience, and to avoid repetition, be considered together. Appellant contends, and cites authority to the proposition, that, in making assessments, the assessing authority must strictly conform to the statutes, or at least that there must be a substantial compliance therewith. It is thought by appellant that Section 810 of the Supplemental Supplement, 1915, was not complied with. The part of the section relied upon by appellant provides that:

"When the council * * * shall deem it advisable or necessary to make or reconstruct any street improvement or sewer authorized in this chapter, it shall, in a proposed resolution, declare such necessity or advisability, stating the one or more kinds of material to be used, and method of construction," etc.

The complaint is that the resolution does not declare the necessity or advisability of grading Forty-seventh Street, and they say that neither the resolution nor the published notice of the same would give the property owner notice that the city deemed it necessary to grade, and so on. It seems to us that appellant misapprehends the record, and that the resolution does cover the objection made. It appears that there was a proposed resolution for opening and extending Forty-seventh Street, to which objections were filed, and another proposed resolution of necessity therefor was presented and adopted, which is as follows:

"Proposed resolution of necessity and resolutions opening and extending Forty-seventh Street from the south line of Forest Avenue to the north line of University Avenue, and a resolution designating and determining the benefited district against which the cost and expense of opening and extending said street, including the cost and expense of purchasing, through condemnation proceedings, the ground necessary for said opening and extending, shall be assessed.

"Be it resolved by the city council of the city of Des Moines: That it is deemed advisable and necessary to open and extend Forty-seventh Street from the south line of Forest Avenue to the north line of University Avenue, and the following tracts of ground are hereby designated as a street and dedicated to the public for street purposes, to wit: The east 22.5 feet of Lots 9, 10, 11, 12, 32, 35, 36, of the official plat of Waveland Place, an addition within and forming a part of the city of Des Moines, Polk County, Iowa, and other property.

"Be it further resolved: That the cost and expense to the city, by way of damages, if any, to abutting property because of said opening and extending, including the cost and expense to the city in acquiring the tract of ground hereinabove designated as a street, and dedicated to the public for street purposes, and grading the same to conform to Forty-seventh Street, already established, be apportioned to and assessed in proportion to benefits on all lots and parcels of land according to area abutting thereon, and including all adjacent property privately owned, and described as follows: Lots 7 to 12, inclusive, and Lots 23 to 36, inclusive, Waveland Place, and Lots 1 to 7 of the official plat of Lot 13, Waveland Place, an addition within and forming a part of the city of Des Moines, Polk County, Iowa [and other property not under consideration]; said assessment to be in proportion to the special benefits conferred on the property hereinabove described, and not in excess of such benefit.

"Be it further resolved: That the territory just above described be, and the same is hereby designated and determined by the council to be, the district benefited by the improvement hereinabove provided for.

"Be it further resolved: That the city council will meet at 9 o'clock A. M., on the 26th day of October, 1917, at the council chamber at the city hall, for the purpose of considering said objections to said proposed resolution of necessity providing for the opening and extending of Forty-seventh Street hereinabove referred to, and the resolution of the council in fixing and determining the benefited district and assessing the cost and expense to said district; and that notice of such proposed resolution be published, as provided by law.

"Be it further resolved: That the legal department be and it is hereby directed to immediately, upon final passage of this resolution, proceed to secure, by condemnation proceedings or otherwise, the ground included within the territory above described, necessary for the opening and extending of Forty-seventh Street; and when title for said ground is thus procured, the same be dedicated to the public as a part of Forty-seventh Street, and for street purposes.

"Passed October 1, 1917. Approved October 1, 1917.

"John McVicar, Mayor.

"Attest: Frank Jeffries, City Clerk.

"Published in Daily Capital October 2 and 3, 1917."

It is next objected that the notice for bids did not comply with Section 813 of the Supplemental Supplement, 1915. It is as follows:

"Proposals for Grading Forty-Seventh Street from University Avenue to Forest Avenue.

"No 573. Sealed proposals will be received by the city council of the city of Des Moines at the office of the city clerk until 9:00 o'clock A. M. on the 27th day of May, 1918, for the following improvements, as per specifications now on file in the office of the superintendent of the departments of streets and public improvements. Grading Forty-seventh Street from the north line of University Avenue to the...