Smith, Lichty & Hillman Co. v. City of Mason

The appellee, Smith, Lichty Hillman Company, a corporation, at all times material to this appeal was the owner of a corner lot described as Lot 4, Block 4, Wildwood Addition to Mason City, Iowa. Said lot faces Crescent Drive, and abuts on Polk Avenue in said city, the frontage on Crescent Drive being 50 feet, and on Polk Avenue 118 feet. The city council of Mason City on May 2, 1928, adopted a resolution of necessity wherein it was declared advisable and necessary to improve, by paving and curbing, certain described streets and parts of streets within said city, including the streets on which the lot in question is situated. There was due and legal proof of publication of said resolution. The resolution of necessity contained the usual averments, to wit:

"Any property owner who has not on file with the city council at the time of the final consideration of this resolution, objections to the amount of the proposed assessment against such property shall be deemed to have waived all objections thereto; * * * The assessment against any lot shall be in proportion to the special benefits conferred upon the property thereby, and not in excess of such benefits, and in any case shall be limited to twenty-five per cent (25%) of the actual value of the lot at the time of the levy. And, in all cases, assessments shall be made in accordance with the provisions of Chapter 308 of the Code of Iowa, 1927."

No question is raised as to the regularity of the preliminary proceeding in the instant matter. A plat and schedule of the entire paving project were prepared and filed, which disclose that the lot in question on the Polk Avenue side had an estimated paving assessment of $270, and on the Crescent Drive side $245, or a total assessment of $515; and it also showed the value of the lot, $1,200. The complete final plat and schedule of assessment for the paving project disclose an assessment against Lot 4 for the Polk Avenue pavement, $200.38, and for the Crescent Drive pavement, $184.51, or a total assessment against said lot in the sum of $384.89. The lot value on the final plat and schedule was $1,200. No objections were filed by the lot owner to the resolution of necessity. Objections were filed after the improvement was completed, but before the final assessment proposed to be levied was acted upon by the city council.

The primary ground of the objections as filed is "that said proposed assessment in the sum of $384.89 is in excess of 25 per cent of the actual value of said lot." Under the record, therefore, the only point in issue on this appeal is whether the statutory limit of 25 per cent of the value of the lot, stipulated by the parties hereto to be $1,000(at the time of the levy), is controlling; or, putting the question in another form, whether the plaintiff-appellee has waived the statutory limitation of 25 per cent by failing to file objections prior to the adoption of the resolution of necessity. The objections, upon hearing, were overruled by the council.

There can be no quarrel with appellant's contention that there may be a waiver of the 25 per cent limitation, and the decision cited by appellant, to wit, In re Paving Floyd Park Addition,197 Iowa 922, is not applicable here, since in that case there was an express written waiver by the property owner at the time the petition was filed with the city council praying for the paving in question. In the instant case, there was no waiver, express or implied. Appellant further relies upon Black v. Consolidated Ind.Sch. Dist., 206 Iowa 1386; but it is sufficient to state that the applicable law under the facts in that case is not pertinent to the case at bar.

It is further shown in the instant case that the objections were filed by the lot owner under the second notice to plaintiff, dated September 19, 1928; that, under said notice, October 9, 1928, was the time set to file objections or to correct any irregularities in said assessment; and that said objections were filed by the plaintiff October 4, 1928.

At this point it may be stated that, at the time the $1,000 valuation was stipulated, said recited and agreed value was subject to defendant's reserved objection as "irrelevant, etc., by reason of the failure of the plaintiff to file objections to the resolution of necessity before the hearing of May 1, 1928." We see no merit in the reserved objection, and will, therefore, consider the value of this lot at the time of the levy to be $1,000.

A brief reference to the statutory provisions embodied in Chapter 308, relative to street improvements, may at this time be made. The power of a city to improve any street by curbing and paving is clearly defined. Section 5975, Code, 1927. A resolution of necessity shall be adopted when a city council deems it necessary to pave any street, and such resolution shall designate the location and terminal points of the street or streets to be paved, and shall recite that the plat and schedule of the proposed improvement are on file in the office of the clerk. Section 5991. The council may, in addition to the recitals contained in the resolution of necessity, incorporate in said resolution the statement that, unless the property owners at the time of the final consideration of said resolution have on file with the clerk objections to the amount of the proposed assessment, "they shall be deemed to have waived all objections thereto." Section 5992. The statute also provides that, before the resolution of necessity is introduced, the council shall prepare and file with the clerk a plat and schedule, which, interalia, shall show "each lot proposed to be assessed together with a valuation fixed by the council," and "an estimate of the cost of the proposed improvement," and" the amount thereof which isestimated to be assessed against each lot." Section 5993.

"The council shall fix the time for the consideration of the proposed resolution of necessity, at which time the owners of property subject to assessment for the proposed improvement * * * may appear and make objection to the boundaries of the proposed district, to the cost of improvement, to the amount proposed to be assessed against any lot, and to the passage of the proposed resolution." Section 5995.

The statute further provides for notice of the time when said resolution will be considered, and the manner of giving said notice. Section 5997. After the passage of the resolution of necessity, the council by another resolution may order the construction of the improvement. Section 5998.

"When any city council levies any special assessment for any public improvement against any lot, such special assessment shall be in proportion to the special benefits conferred upon the property thereby, and not in excess of such benefits. Such assessment shall not exceed 25 per cent of the actual value of the lot at the time of levy * * *." Section 6021.

After filing the plat and schedule for street improvements, the council must give notice by two publications in each of two newspapers published in the city, and said notice shall state that said plat and schedule are on file in the office of the clerk, and that, within 20 days after the first publication, all objections thereto, or to the prior proceedings on account of errors, irregularities, or inequalities, must be made in writing and filed with the clerk. Section 6026.

The foregoing constitute the essential statutory provisions applicable to the case at bar. It is true that, although plaintiff was notified in the first instance, he did not file objections to the resolution of necessity. This, however, was not fatal to his right to object at a later time. Plaintiff had the right to assume that, if a mistake was made by the city council in the first instance as to any estimate, — for example, the value of the lot, — the council would later correct same. Plaintiff had the right to assume that the council would respect the 25 per cent rule, which involved a mere matter of computation in percentage. Even if it be conceded that the lot was worth $1,200, as stated in the schedule, the 25 per cent limitation would not permit the city to impose an assessment in the sum of $387.89. Upon the final consideration of the schedule, the council should have reduced the assessment to at least $300. The trial court recognized the stipulated valuation as $1,000, and made this the base on which to compute the 25 per cent assessment, or $250, and viewed the first notice, and the plat and schedule as originally filed with the clerk, as the preliminary steps in this particular project. We accept this viewpoint. The city council was bound to recognize the 25 per cent limitation, and it was so recognized by a recital in the resolution of necessity in this case. In brief, there was no final fixing of valuation of the lot in question until the completion of the improvement and the final levy. The plaintiff did have his objections on file before the final levy was made. The city council could only make a valid assessment, and a failure to appear and object in the first instance, and not until prior to the final action of the city council in the matter, did not constitute a waiver on the part of plaintiff, nor did such failure, under the circumstances, validate the action of the city council in making an excessive assessment. As bearing in a general way on this case, see Shaver v. Turner Impr. Co.,155 Iowa 492; Belknap v. City of Onawa, 192 Iowa 1383.

We conclude, therefore, that the trial court correctly ruled the proposition involved in this case, and the decree entered is, therefore, — Affirmed.

EVANS, FAVILLE, KINDIG, and WAGNER, JJ., concur.