Scofield v. City of Council Bluffs

• Decision Date: 23 April 1886
• Citation: 68 Iowa 695,28 N.W. 20
• Parties: SCOFIELD AND ANOTHER v. CITY OF COUNCIL BLUFFS.
• Court: Iowa Supreme Court

68 Iowa 695

28 N.W. 20

SCOFIELD AND ANOTHER

v.CITY OF COUNCIL BLUFFS.

Supreme Court of Iowa.

April 23, 1886.

Appeal from Pottawattamie circuit court.

The plaintiffs bring this action as assignees of one Moore, and of one Flageolle, who it is averred performed labor for the defendant city in filling certain streets to grade, and for which labor it is averred that the defendant became indebted to the plaintiffs' assignors. The defendant does not deny the performance of the labor, but avers that the cost of the same was assessed upon abutting lots, and certificates of assessment were issued to Moore and Flageolle, whereby they became entitled to collect the assessment, and that they agreed to accept the certificates in full payment for the work. There was a trial to the court, and judgment was rendered for the plaintiff. The defendant appeals.G. A. Holms and Daily & Smith, for appellant, City of Council Bluffs.

Sapp & Pusey, for appellees, Scofield & Cavin.

ADAMS, C. J.

1. The plaintiffs do not deny the issuance of the certificates as averred, but they aver that the same have no validity, because the city had no power to assess the abutting lots for the work in question. The first question to be determined is as to whether the city had such power. The statute provides for assessing upon abutting lots the cost of paving a street, but does not expressly provide for assessing upon abutting lots the cost of filling a street to grade. On the other hand, the cost of filling to grade is payable out of the general fund. Code, § 465. The paving of a street is supposed, in all cases, to be especially beneficial to the abutting lots, but this cannot always be said of raising a street by filling. The raising of a street in front of a lot is oftentimes detrimental to it. Whatever benefit accrues is enjoyed by the city at large. The legislature, therefore, as can be seen, very properly made a distinction between the cost of paving and the cost of filling. Notwithstanding this distinction, efforts have sometimes been made to assess upon abutting lots the cost of filling. This was the case in Bucroft v. City of Council Bluffs, 63 Iowa, 646,S. C. 19 N. W. Rep. 807, but the right to make such assessment was denied. It was said, however, in the opinion that paving may include the preparatory grading, and it is insisted that such is the fact in the case at bar.

Such grading, if any, as may properly be considered a part of the work of paving may doubtless, under the statute, be charged upon the abutting lots. But the grading in the case cited was not a part of the work of paving, and the court did not undertake to say what grading would be. It will be time enough to meet that question when it arises. It seems clear that where streets are filled to grade, and the improvement is of such a character as to be valuable as a distinct improvement, but not necessarily beneficial to the abutting lots, such improvement should be paid for out of the general fund. We do not say that the cost of filling can be charged upon abutting lots wherever it can be shown that they are benefited. Such cost can be charged to abutting lots only under the statute, and...