Union Trust Co. v. Carnhope Irr. Dist.

• Decision Date: 16 January 1925
• Docket Number: 18679. [*]
• Citation: 232 P. 341,132 Wash. 538
• Parties: UNION TRUST CO. v. CARNHOPE IRR. DIST. et al.
• Court: Washington Supreme Court

232 P. 341

132 Wash. 538

UNION TRUST CO. v. CARNHOPE IRR. DIST. et al. No. 18679. ^[*]

Supreme Court of Washington

January 16, 1925

Department 2.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by the Union Trust Company, as executor, etc., against the Carnhope Irrigation District and another, to set aside an assessment. Judgment for defendants, and plaintiff appeals. Assessment set aside.

T. T Grant, of Spokane, for appellant.

Glen E Cunningham and Fred J. Cunning-ham, both of Spokane, for respondents.

MACKINTOSH J.

The Carnhope irrigation district lies just outside of the city limits of Spokane, and is composed of suburban lands in a variety of sizes and ownership. The entire district includes less than 200 acres of irrigable land, of which 33.43 acres located in the southwest corner of the district are unplatted in one contiguous tract, and owned by the appellant. The remaining portion of the district lies nearer to the city of Spokane, and has been subdivided into lots and blocks, and is thickly settled with residences. The map of the district shows that this property has been divided into approximately 642 lots, most of them 35'X135' in area, though a few are 50' X135' and some 50'X129'; also some averaging 130'X260'. There are also a few tracts averaging 5 acres each. The district has installed a pump and errected a reservoir to which water is pumped from a well, where it is distributed to the lands within the district. In constructing the irrigation district, the district considered that it was proper to touch every individual landowner's property so that he might receive water, regardless of the area owned by him, and in conformity with this theory the district constructed a lateral system in the western portion of the district, so that water could be distributed to every lot, and this distribution system is now maintained. It consists of iron pipes laid four feet beneath the surface, most of the pipe being four inches in diameter. No laterals were built through the land of the appellant, but the pipe line touches this land. In order for the appellant to reach all of his 33.43 acres in the same manner as the lots in other portions of the district are reached, it will be necessary to construct laterals throughout his land, and, if the appellant does this at his own expense, even by the use of wooden pipes, the expense to him will be approximately $2,500. The entire cost of the system to the district has been $25,000, for which bonds have been issued. It is apparent that each of the lot owners may, by connecting with the laterals in the street in front of his property, bring the water to his land at a trifling expense. The district made an annual levy of an assessment to pay interest on the bonds, and for maintenance. These assessments were made by the board and confirmed by it as a board of equalization on the basis of $15 per acre throughout the entire district; the appellant's assessment therefore being one-sixth of the entire assessment of the district. The appellant objected to the assessment, claiming that other lots in the district received greater service than his land and that he was therefore compelled to pay more to distribute water over his land than does his neighbor who resides where there are more pipes. The board refused to make any reduction in the assessment. This action is begun for the purpose of having canceled and set aside the assessment roll on the ground that in making the assessment the district acted arbitrarily and fraudulently, and not in accordance with the rule of law, and not in accordance with the benefits received by the lands assessed.

The complaint alleges, and the proof shows, that all of the lands in the district are of the same general character, and that the district has at all times since it began its operation furnished available water sufficient for the irrigation of appellant's land; the appellant claiming that the property to which laterals have been constructed, and which may receive the available water by merely connecting with these laterals, receive more benefits from the proceeds of the bond issue than does the appellant's land, and therefore should be assessed more than his land. The district claims that the assessment is valid, for the reason that the water has been brought to the land of the appellant regardless of its area, and therefore that his land has received the same benefits as the rest, and should receive the same assessment; that the basis in fixing the ratio of benefits for assessment where the lands are of the same character agriculturally is the amount of water furnished and made available for the landowner; that the inconvenience to which the landowner might be put with reference to the lands of the district is a matter with which the district need not concern itself, and therefore the district has proceeded on a fundamentally correct basis, and the courts cannot interfere with the assessment.

The question to be determined is whether the action of the district is in accordance with the law and the assessments made according to the benefits received. If they were not so made, they were in law made arbitrarily and fraudulently, and can be set aside. Section 7436, Rem. Comp. Stat., provides the method by which a district shall make assessments necessary for its care, maintenance, repair, improvement, and for completing expense of organization, and reads:

'Assessments made * * * to carry out the purposes of this act shall be made in proportion to the benefits accruing to the lands assessed.'

In other words, that these assessments are to be made in proportion to the benefits received by the various landowners within the district. The theory of assessment for benefits is that the landowner has received, by reason of the improvement, an increase in the market value of his property, and that increase marks the extent of the benefit. This court, in Otis Orchards Co. v. Otis Orchards Irrigation District No. 1, 124 Wash. 510, 215 P. 23, says:

'It is generally understood that land within a district is benefited by an irrigation system to the extent that the added facilities for irrigation add to the value of the land itself, and this does not depend upon the use the owner may make of the water.'

It is to be borne in mind that this is not a charge upon the property owners for the actual water received, but merely for the expense connected with the creation and operation of the district. Volumes have been written upon the question of benefits, and a multiplicity of theories have been advanced by different courts and text-writers as to the basis upon which the benefits should be determined, but the sound rule and the one which it would seem all the authorities are coming to is that these benefits are to be determined, as we have already indicated, by the increase of the market value of the property affected. It may be that the increase in the market value may be coincident in certain cases with the value of the property, or according to its superficial area, or according to its frontage or any other measure, but these are mere coincidences, and do not furnish the proper basis for the assessment. When the Legislature prescribes that the assessment shall be made in proportion to the benefits, it is not within the power of the assessing body to adopt any other rule, and to assess according to area or frontage or in any other manner not provided for in the statute, and an assessment levied on any other basis than that so provided is illegal. As stated in 25 R. C. L. 138:

'* * * And it has been held that an assessment in proportion to the benefit, and not according to the market value, or any other rule, is required when a statute provides respecting a local improvement that each parcel of land benefited shall be assessed its proportional part of the whole cost. The requirement that the value of the benefits shall be assessed means that the assessors shall, from their knowledge, experience, observation, and judgment, make a fair and just estimate of the benefit which each particular piece of property will receive by reason of the improvement. * * * In a number of states the theory of benefits is literally adhered to, and it is held that special assessments cannot be levied unless the property charged receives a corresponding physical, material, and substantial benefit from the exaction. And whenever a local assessment upon an individual is not grounded upon and measured by the extent of his particular benefit, it is considered to be, pro tanto, a taking of his private property for public use, without any provisions for compensation. According to this view each parcel of contributing property in a taxing district for local improvements therein may be assessed only to the extent that it actually receives special benefits, and a taxing district for local improvements may, as a whole, be assessed only to the extent of the sum of the special benefits actually received by the several parcels of contributing property. If, therefore, it can be said as a matter of law that the land will not be specially benefited by the improvement in question--that is, that its value will not be enhanced--there can be no special assessment.'

In 1 Page & Jones, Taxation by Assessment, § 11, it is said:

'The theory underlying the doctrine of local assessments of the first type, which is held by the great majority of the courts, is that the value of certain property is enhanced by an improvement of a public character, the property thus receiving an especial and peculiar benefit, and that upon such property a part or the whole of the cost of such public improvement is assessed to an amount not exceeding the amount of such benefits. The owner of the property

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