In re Appeal of Apple

Withrow, J. I. The appellee has filed in -this court a motion to dismiss the appeal, based upon the fact that, since the decree of the district court in these eases, the appellants by permitting *a sale of their properties for the special assessments, or by payment to prevent such sales, have satisfied the judgment and decree of the district court. In view of our finding as to the merits of the case on appeal, it is unnecessary to consider and decide this motion. II. On January 21, 1910, the city council of the city of Perry ordered the giving of notice of the time of hearing objections to the passage of a proposed resolution of necessity providing for the improvement of First avenue from the North side of Willis avenue to the South side of Park street by paving with creosoted wood blocks laid on a sand cushion [316] on a Portland cement concrete foundation, and by curbing to be constructed of Portland cement, sand, and gravel, all in accordance with specifications to be thereafter prepared by the city engineer and approved by the city council. The cost of construction, including street intersections, was to be paid by assessment against private property abutting the improvement. The width of the paving nor the location of the curbing were not specified in the resolution of necessity. Prior to the commencement of these proceedings, the curb line or location for curbing on First avenue had been fixed by the city council, and permanent curbing had been constructed by property owners, leaving the traveled portion of the street at least sixty feet in width. Several weeks after the giving of notice had been ordered, and pending its completion by publication (i. e., March 8, 1910), the council adopted.a separate resolution fixing the width of the paving on First avenue at thirty feet. Plans and specifications were prepared by the city engineer in accordance with the original resolution and its amendment and were approved by the city council March 17, 1910. The specifications provided for a foundation of Portland cement concrete of a uniform depth of four inches when properly compacted; the mixture to be of certain designated proportions. It was provided that “the sand used in the concrete shall be clean, sharp, free from loam and dirt,” and that “the gravel used in the concrete foundation must be washed clean and free from sticks or other organic matters,” etc. The specifications, which were evidently drawn by the city engineer, contained the following, designated as an “after word”: “Since writing these specifications it has come to the writer’s knowledge that there are several deposits of good bank gravel in this vicinity. If such is the case and clean bank gravel can be procured which will in all respects satisfy these specifications except in regard to being pumped or washed, the city engineer may at his discretion admit same for use in any of this work.” [317] Following the adoption of the plans and specifications for the work, the contract was awarded to a construction firm, and upon the completion of the pavement the city council, after due notice to property owners, levied special assessments, from which in this proceeding appellants seek to have their several properties relieved. Appellants filed with the city clerk and presented to the city council objections to the assessment, which were overruled, and appeal was taken to the district court. Demurrer was filed to the petition and to Exhibit A, which stated the objections filed and presented to the city council. The trial court sustained the demurrer to objections numbered 1, 2, and 3, and error is now charged as to such ruling. 1. municipal corporations: street pavement: resolition and notice III. The first ground is based upon the claim that the preliminary notice did not state the kind of material to be used or the method of construction proposed to be adopted. The particular claim is that, while the pavement was proposed to be constructed oi creosote wood blocks, “no one of the dozens of kinds of wood is specified, nor is there any specification as to quality, weight, size, or in any other respect are they described other than that they are to be ereosoted wood to contain not less than sixteen pounds of oil to the cubic foot, ’ ’ and that they ‘ ‘ are to be laid on a suitable sand cushion.” It is not necessary that the resolution of necessity should present all the details of the proposed improvement. Its office is to apprise the public of the general character of the improvement and give opportunity for investigation and, if desired, for protest. A resolution and .notice which advises the public of the general character of the improvement and of the material to be used implies a purpose to construct in the usual and approved manner in the use of the designated material. Following the rule announced in Nixon v. Burlington, 141 Iowa, 316, we hold that in the respect charged the resolution of necessity was sufficient. [318] 2. same: location of improvement: designation [317] IV. The second objection to which demurrer was sus [318] tained was that the resolution and notice did not designate the location or extent of the improvement. The actual location an<^ terminals of the proposed pavement were named. The fault found by appellants is that the width was not given. Code, section 810, requires that the resolution designate the location and terminal points. When the resolution designated the street to be improved as “First avenue from the North side of Willis avenue to the South side of Park street,” there was a literal compliance with the statutory, requirements. No more can be required than the Legislature has fixed as necessary to be stated in the notice; and it is not required that the width of the improvement be then given. 3. Same •. change in improvement: assessment: validity V. The third objection to which demurrer was sustained was that the width, of the improvement was changed from the fair intendment of the resolution; that is, from the width of sixty feet between the old curbs to thirty feet, This is necessarily covered by the ruling in the preceding paragraph. If there was no requirement that the width be given in the resolution of necessity, it follows that such was to be determined by the c-ity council as it had the power to do if made a part of the specifications and if, as in this case, no additional burden was created. This was done, and the specifications were not adopted until after the width was definitely fixed. 4 Same • special cosiPof1 street intersection. VI. The trial epurt found that the property was liable to share in the cost of the paving of street intersections along the line of the proposed improvement; the assessment thus made being for the full amount of the intersections extending into the traveled part of the erogs streets to a point in line with the frontage of the lots abutting upon the improvement. Code, section 817, gives to city councils the power in making street improvements to include the cost of intersections in the general account and distribute it over the abutting property in ppnnection with and as a part of the total cost, according to [319] the benefits conferred. No statutory rule is given as to the limit of the intersection for which charge may be.thus made. It is the claim of appellant that it cannot exceed the width of the line of paving of which the intersections are a part, otherwise the property owners are compelled to pay for a part of the improvement on intersecting streets. The plat prepared by the city engineer and filed with the specifications indicated that intersections were to be paved on cross streets to a point in line with the frontage of abutting lots, and the improvement made was in this respect in accordance with the plat. The Legislature has not in definite terms stated what is intended to be included as the area of street intersections, as applied to public improvements such as are here in controversy. As bearing upon the liability of property owners for the construction of sidewalks, it has been held to be “the part of a street not directly, in front of the lots but which fill out the spaces at the corners of blocks from the lot lines. . . . There is a space left at such place not directly opposite any lot, and known as an intersection. ’ ’ Gage v. Chicago, 203 Ill. 26 (67 N. E. 477); Words and Phrases, vol. 4, section 3724. In Wolf v. City of Keokuk, 48 Iowa, 129, this court held that an intersection at the crossing of streets includes the part of the street which the lot fronts and lies along, and includes the idea of breadth as well as length. Neither of the cases above cited arose under conditions such as are presented here, but we are of opinion that, in the absence of a limitation by the Legislature, the rule above given should be accepted ás a proper guide. While it is true that there may, and no doubt often do, arise instances in which, by the application of this rule to original improvements, property owners on cross or intersecting streets which are later paved may not be assessed for a part of the intersection previously made at the cost of others, and thereby bear less than a just proportion of such burden, we regard this as a subject of legislative action rather than for the courts. As the intersections extended to the line of the abutting lots, the city council acted within its powers [320] in including their cost as a part of the total amount to be distributed by assessment against abutting and benefited property. 5. same: special assessment: validity: variance from specifications VII. The remaining objections which are discussed on this appeaTrelate, first, to the charge that the foundation was materially less than four inches in thickness and was not of uniform thickness as required by the specifications, and, second, that the sand used in the foundation was not clean and sharp and free from loam, and the gravel used was not washed, and the sand and gravel were not properly proportioned as required by the specifications. These questions are of fact, upon which much testimony was introduced, all of which we have considered. As to the latter it will be noted that, as an addendum or “after word” to the specifications, it was stated that bank gravel in that vicinity, which would in all respects satisfy the specifications; could be used, reserving to the city engineer the discretion to admit or reject the same in the work. ■ This gravel was, after having been thoroughly analyzed and tested, used with the approval of the city engineer; and a fair consideration of the evidence leaves in our minds no doubt that the concrete into which it entered was strong and enduring and substantially complied with all requirements, having, as shown in the record, the proportion of cement required to produce a result equal to that required by the original specifications. The evidence failed to satisfactorily show in the sand and gravel thus used the presence of the prohibited substances of sticks or other organic matter but on the contrary quite warranted the conclusion of the trial court, in which we concur, that in the respect charged there was a substantial compliance with the contract and specifications. 6. same VIII. The other question is as to the thickness of the concrete base, Testimony was introduced tending to show [321] that, at different places along the line of the work, sections of the base were removed and measured, and that they varied in thickness- from two and one-half inches to slightly in excess of four inches. The trial court in an able opinion filed in the case, and which is before us, in referring to the pieces .of the foundation which had been removed and' measured, and which were introduced as exhibits, but which have not been certified for our inspection, stated as follows: “Many samples of the concrete were introduced in evidence and their thickness measured in many ways in open court. Some of these exhibits, being small fragments broken out of the foundation, measured less than three inches, but they were not of uniform thickness; some of them bearing evidence that some portions of the concrete had been broken from the bottom of the block. Other samples measured over four inches.” It also appears from the record that witnesses testifying on the part of the appellants did not agree as to the results of what may be called test measurements, even when at times referring to the same point. In the absence of the exhibits, we must give due weight to that part of the finding of the trial court based upon a personal inspection of them. It is also shown that some of the exhibits were taken from places near manholes, the cast iron covers for which were not ready at the time. The city engineer testified that, knowing that concrete too near the openings which were left would need to be removed when the eastings were put in place, but little care was taken to get it of proper thickness close to the edges of the manholes. The lower court found, and we agree with the conclusion, that the foundation was not of a uniform depth of four inches, but also that in the construction, as shown by the proof, the quantity of materials used in the concrete foundation was more than sufficient to have produced the required uniform thickness. The evidence also shows that measurements were frequently made from time to time as the foundation was being spread, and that none showed less than a depth of four inches. We are quite satisfied from a consideration of [322] the testimony on this point that there was no intentional departure from the terms of the specifications, and that the variations were but few and without substantial detriment, if any, to the entire work. The city engineer, as shown by the record, gave attention to the work during its progress, inspected and passed the same, and there is nothing from which we would have the right to infer fraud or collusion in procuring its acceptance. This court has held in McCain v. City of Des Moines, 128 Iowa, 331, that where work has been accepted such act can only be interfered with on appeal by showing either actual or legal fraud. True, in that case it was found that there was such gross noncompliance with the specifications, materially resulting to the benefit of the contractor, that a finding of fraud was necessarily drawn from such conditions, but such conclusion cannot be reached from the record before us. As further bearing upon the rule as to the effect of substantial performance and acceptance, we refer to Wingert v. Tipton, 134 Iowa, 97, and Ford v. Manchester, 136 Iowa, 213. From the latter case we quote the following language which has pertinent application here: “In the performance of work of this character it is safe “to say that compliance with every term and condition of the plans and specifications with complete and perfect mathematical exactness is never attained, and where the variation is of a trivial or negligible character, and especially where, as in this case, the engineer or overseer to whom both parties have committed the oversight of the work, acting in good faith without fraud or collusion, approves the work in all of its various stages of progress, no ground is afforded for denying a recovery upon the contract.” We do not find that there was a substantial variation made from the specification in spreading the foundation; and while the foundation did not with mathematical certainty meet all requirements as to its thickness, yet in the conditions shown, and in the light of the frequent measurements made [323] during the progress of the work, there was a substantial compliance with the terms of the contract. There appearing no reasons which would justify us in holding the assessments invalid or erroneous, the decree of the lower court is Affirmed. Weaver, C. J., and Ladd, Deemer, Gaynor, and Preston, JJ., concur. Eyans, J., took no part. •