Seymour v. City of Ames

• Decision Date: 23 June 1934
• Docket Number: No. 41984.,41984.
• Citation: 255 N.W. 874,218 Iowa 615
• Parties: SEYMOUR et al. v. CITY OF AMES et al.
• Court: Iowa Supreme Court

218 Iowa 615

255 N.W. 874

SEYMOUR et al.

v.CITY OF AMES et al.

No. 41984.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Story County; H. E. Fry, Judge.

Mae Seymour and B. F. Seymour were the owners of a certain unplatted five-acre tract of land in the city of Ames. They commenced this action against the City of Ames, the City Clerk, the Treasurer of Story County, and the Auditor of Story County, to enjoin the enforcement and collection of certain pretended special assessments against the property owned by the Seymours, and prayed that the assessments be declared null and void and canceled. The lower court entered a decree, enjoining the collection of the pretended special assessments, declaring same to be null and void, and canceling same. The opinion states the facts.

Affirmed.

R. E. Nichol, of Ames, for appellants.

Lee, Steinberg & Walsh, of Ames, for appellees.

MITCHELL, Justice.

The appellees are the owners of an unimproved five-acre tract of land near the western limits of the city of Ames, Iowa, which tract of land borders upon a highway generally known as Lincoln Highway. All of the property of that portion of the city of Ames is platted or laid out in town lots with the exception of this particular five-acre tract. The highway commission had paved the Lincoln Highway along this tract with an eighteen-foot strip of pavement, and the city of Ames proposed to and did widen the pavement by adding a six and a half foot strip on each side of the pavement installed by the state highway commission. The city council on its own motion provided for the permanent improvement along said highway within the city of Ames. This was initiated by a proposed resolution of necessity, which proposed resolution of necessity is known as “Resolution No. 887,” and was passed by the city council on the 6th day of January, 1930. Pursuant thereto a copy of said proposed resolution was published in the Ames Daily Tribune on the 10th and 17th days of January, 1930, which proposed resolution of necessity by its terms provided that the city council would meet at 8 o'clock on the 3d day of February, 1930, in the city hall, for the purpose of considering objections to the proposed resolution of necessity. No objections to the proposed resolution were filed by appellees or any other person interested, and the appellees did not appear or make any objections at the time that said resolution came on before the city council. On the evening of the 3d of February, 1930, the proposed resolution, No. 887-A, was passed by four members of the council. The record shows that the city of Ames at that time had six councilmen and a mayor.

About the same time that the city of Ames sought to improve the highway by installation of the pavement, it also sought to install sewer and water connections along the highway, and assessed the cost of same to the adjacent property. The five-acre tract belonging to appellees, which was unimproved, is described as the south half of the southeast quarter of the southeast quarter of the southeast quarter of section 5, and said tract was never subdivided into blocks or lots. On the 7th of October, 1929, the city council of Ames passed a resolution, ordering the property owners to install connections for gas, water, and sewer to the curb line of the property adjacent to the proposed improvements; that said installation be made within thirty days from the adoption of the resolution “according to the plans and specifications of the City Manager of Engineering now on file in the office of the City Clerk,” and further providing that if such connections were not made, the city engineer should cause the same to be made and the cost and expense thereof assessed against the property in front of which the improvements were made. The city clerk was given instructions in said resolution to give notice as far as practicable, to the property owners, and to publish the same in two issues of the Ames Daily Tribune, and by handbills posted along the streets proposed to be improved.

No plat was filed in the office of the city clerk, with the specifications for doing the work, showing where the water and sewer connections should be constructed, until after the work had been completed. Specifications governing contractors were filed with the city clerk on October 21, 1929, but such specifications did not prescribe the number of connections required or their location.

The appellees resided in the city of Ames, Iowa, at all times involved in these proceedings. They and their residence were known to the city officials, but no notice was ever given to the appellees except by publication in the newspaper, which was not directed to them personally, and by handbills posted along the streets, which notice likewise was not addressed to the property owners. The appellees did not have actual notice of the passage of the resolution or of the work that was being done, and did not know that their property was to be assessed for sewer and water connections until after they had been installed.

There were two other special assessments, not involved in this case, one for sanitary sewer, and one for storm sewer. And the total of the assessment of the four improvements against this five-acre tract of unimproved land amounted to $3,645. Twelve connections were constructed for this single parcel of land at the total cost of $661.91, or $55.17 per connection. And the assessment for paving was in the amount of $1,671.46.

The appellees commenced an action against the city of Ames, the city clerk, the treasurer of Story county, and the auditor of Story county, Iowa, to enjoin the enforcement and collection of the pretended special assessment for the pavement of their five-acre tract, and for the sewer and water connections, asking said special assessments be decreed to be null and void and that same be canceled of record. Said action was in two divisions. The first division prayed for relief as to the pavement assessment, and the second division prayed for relief as to the assessment covering the water and sewer connections. The city of Ames answered the petition, alleging that becausethe appellees did not file objections to the special assessment before the city council, they had waived irregularities in the proceedings, and that, because the appellees knew of the installation of the...