Union County Bd. of Review v. Hotel Inv. Co.

• Decision Date: 14 October 1958
• Docket Number: No. 49496,49496
• Parties: UNION COUNTY BOARD OF REVIEW, Appellant, v. HOTEL INVESTMENT COMPANY, a Corporation, Appellee.
• Court: Iowa Supreme Court

Page 397

92 N.W.2d 397

250 Iowa 59

UNION COUNTY BOARD OF REVIEW, Appellant, v. HOTEL INVESTMENT COMPANY, a Corporation, Appellee.

No. 49496.

Supreme Court of Iowa.

Oct. 14, 1958.

Arnold O. Kenyon, Creston, for appellant.

James B. Harsh, Creston, for appellee.

THOMPSON, Justice.

On April 12, 1957, the county assessor of Union County notified the Hotel Investment Company, the owner of real estate in the City of Creston known as the Iowana Hotel, that its property was assessed at a value of $49,800. In May of 1957 the Union County Board of Review, the appellee in the lower court but the appellant here, fixed the assessed value at $64,750 and duly notified the owner. Appeal was taken to the lower court and after trial the assessment was reduced to the sum of $49,800 as fixed originally by the assessor. For convenience, the Hotel Investment Company will hereafter be referred to as the plaintiff and the Board of Review as the defendant.

I. Upon this appeal we are first met with a motion of the plaintiff to dismiss, upon the ground that after the decree in the lower court was rendered and judgment entered against the defendant for costs, the costs were paid and thereby the defendant acquiesced in the judgment and cannot now be heard to object to it. It appears that the costs were paid by the county auditor of Union County. That voluntary payment of a judgment by one against whom it is entered precludes an appeal is well settled in Iowa. Bates v. Nichols, 223 Iowa 878, 880, 881, 274 N.W. 32, 33, 34, and cases cited. We think, however, that the situation shown here does not come within the rule of the Bates case. We said in Smith v. Ellyson, 137 Iowa 391, 393, 394, 115 N.W. 40, 41, that payment by an interloper does not bar an appeal by the party adversely affected by the judgment. Acquiescence implies knowledge and consent. See Saunders v. Busch-Everett Company, 138 La. 1049, 71 So. 153, 154. The burden is upon one claiming a loss of rights of an adverse party by acquiescence to show the facts supporting his contention. Here no more appears than that the costs were paid by the county auditor. The auditor is not a member of the board. It does not appear that this was done by direction of the board, or with its consent, or even with its knowledge. So far as the record shows, the auditor was no more than an interloper. The asserted loss of right to appeal by reason of the payment of the cost judgment is not supported by the facts before us.

II. A procedural question involving the sufficiency of notice of appeal to the district court was raised in the trial court by the defendant, and error is assigned upon the ruling there. However, in view of our holding upon the merits of the appeal we do not find it necessary to determine the point involved in this matter.

III. The substantial issue before us is whether the assessment by the defendant board of review was inequitable with reference to other assessments of like property, or was grossly excessive, arbitrary or capricious. The trial court apparently placed its decision largely, if not altogether, upon what it thought to be an excessive assessment, above the actual value of the property. Our decided cases in the past have laid down clear rules which must be applied to this class of litigations. When applied to the fact situation in the case at bar, we conclude they require a reversal of the decree from which appeal is taken.

(a) Taking up first the question of inequity of the assessment in comparison with other properties of like nature, we agree with the defendant-appellant here that there is a failure of proof. The property in question is the Iowana Hotel in Creston. It is a valuable hotel property, too large for the present needs of the city and perhaps in a mediocre state of repair and upkeep. There is no other hotel property of any fair similarity with which to compare it. The record shows the assessments upon other business properties in the city and near to the hotel in location. But they are not similar properties; they are used for entirely different purposes and their value is governed by many other different considerations. See Clark v. Lucas County Board of Review, 242 Iowa 80, 90, 44 N.W.2d 748, 753, 754, a case involving a hotel property in the City of Chariton; and Deere Manufacturing Co. v. Zeiner, 247 Iowa 1364, 1375, 1376, 78 N.W.2d 527, 534, 79 N.W.2d 403. It is true that in the case before us the relation of the income of other business properties in proportion to the taxes was shown, and it appears that the assessment complained of will exact a higher proportion of the income from the hotel property to pay it than is true of the others. But we must apply the rule expressed in several cases, that the presumption obtains that the valuation fixed by a board of review is equitable and just. Haubrich v. Johnson, 242 Iowa 1236, 1246, 50 N.W.2d 19, 25; Clark v. Lucas County Board of Review, supra, at pages 97, 98 of 242 Iowa, at page 751 of 44 N.W.2d; Benson v. Town of LeClaire, 185 Iowa 506, 508, 170 N.W. 747, 748.

We cannot say that a showing that a larger proportion of the income of the hotel property will be required to meet taxes in comparison with other business buildings entirely dissimilar in use and in construction is sufficient to overcome the presumption which obtains in favor of the assessments fixed by the board of review. Inequality must be shown by proof of assessments of similar property. Rosenbaum & Sons, Inc., v. Coulson, 246 Iowa 848, 859, 69 N.W.2d 403, 409. We find no sufficient showing of inequitable assessment.

(b). The presumption referred to above applies likewise to a claim that the assessment is excessive. The burden is upon the taxpayer to demonstrate that the presumption has been overcome. In fact, the burden is a somewhat heavy one. The position of the courts is well set forth in this language: 'Courts will not grant relief from an assessment because of mere difference of opinion as to values. But where it is manifest the assessment is grossly excessive, and a result of the exercise of the will and not the judgment, relief will be granted.' In re Appeal of Dubuque-Wisconsin Bridge Company, 237 Iowa 1314, 1316, 25 N.W.2d 327, 328. In the same case it is said: 'If his (the assessor's) action is not arbitrary or capricious or so wholly out of line with actual values as to give rise to the inference that he has not properly discharged his duty, the assessment made by him and confirmed by the board of review should not be disturbed by the courts.' 237 Iowa 1314, 1316, 25 N.W.2d 327, 328. So in Clark v. Lucas County Board of Review, supra, at page 97 of 242 Iowa, at page 757 of 44 N.W.2d, the rule is thus stated: 'The burden on the complaining taxpayer is not met merely by showing a difference of opinion between his witnesses and the assessor, unless it...