Williams v. City of Cherokee , 184 Iowa 899 ( 1918 )

Evans, J.

1. Municipal corporations: presumption of regularity. The plaintiff challenges the jurisdiction of the city council to make the assessment. This challenge is based upon an alleged departure in the construction of the sewer from the point of location specified in the resolution of necessity and notice. In no other respect is it claimed that the procedure of the city was irregular. The location of the sewer in question was upon North Second Street, in the city of Cherokee. The resolution of necessity fixed the point of commencing as “opposite the line between Lots 12 and 13 of Corbett & Kellog’s Subdivision;” thence south along North Second Street. The appellant contends that the sewer was actually constructed so as to commence 13 feet farther north than such point; that such 13 feet was the only part of the sewer that abutted upon her property; that the city council had no power to construct such additional 13 feet, and could not by the construction thereof render the property of the plaintiff subject to an assessment to which it would not otherwise have been liable.

Assuming that the facts thus claimed would render void the assessment against plaintiff’s property, the burden was upon her to prove the fact. The evidence in that regard is very unsatisfactory. It consists of the testimony of her husband, as a witness, that the point fixed by the resolution of necessity would be opposite her south line. This evidence was received subject to objection, ruling being reserved. The witness professed no knowledge on the subject other than what had been told him by someone else. The real criterion of the location was the line of Lots 12 and 13 in the resolution of necessity. The record discloses no showing as to the location of such line. In the absence of evidence thereon, it must be assumed, for the purposes of this case, that the commencing point adopted was “opposite-the line between Lots 12 and 13.” Plaintiff’s property was Lot 4, and was no part of Lots 12 and 13. It may be that the south line of plaintiff’s property was an extension of the dividing line between Lots 12 and 13, but there is no showing to that effect.

2. Municipal corporations: substantial compliance with contract. If the fact were deemed proved, it does not impress us as destructive of the jurisdiction of the city council. It is conceded that the plaintiff’s property is abutting to the, north 13 feet of the sewer as constructed. If such north 13 feet had been omitted, plaintiff’s property might still be deemed adjacent to the improvement. Under Code Sections 819 and 820, the cost of sewer may be assessed upon adjacent, as well as abutting, properties. The construction of the additional 13 feet, if such, was not prejudicial to the plaintiff in any sense, unless it was a method adopted to fix upon her a liability to which she could not otherwise have been subjected.' On the contrary, it was manifestly beneficial to her, in that it enabled her to connect with the sewer more conveniently than she otherwise could. We reach the conclusion that the trial court did not err in confirming the assessment. Its order is, therefore, — Affirmed.

Preston, C. J., Ladd and Salinger, JJ., concur.