Toben v. Town of Manson

Weaver, J. 1' Spotations: meats: ^ssess^ £g5cuita™inst an s’ — The appellee, Toben, owns a farm within the corporate limits of the town of Manson, and immediately adjoining the town plat. In the year 1920, the town council, by appropriate proceedings, undertook the paving of a certain street extending from the central portion of the plat northward along the west boundary of appellee’s farm. The improvement having been completed, a schedule of proposed assessments to defray the cost thereof was prepared, and [751] the amount shown as chargeable to the land in question was placed at $10,457.51. The plaintiff .at the proper time appeared before the council and filed written objections thereto. The objections included many specifications; but, for the purposes of this appeal, they may be summed up in the claim that the proposed assessment was excessive and inequitable. The council sustained the objection in part, and ordered the assessment reduced to $9,000; but plaintiff, insisting that it was still excessive, appealed to the district court. After hearing the evidence, the trial court held with the plaintiff, finding that the fair market value of the land charged with such burden did not exceed $26,000, and that, under the statute, the assessment could not properly exceed one fourth of that sum, reduced the tax to $6,500, and ordered that plaintiff be allowed 20 days in which to pay said sum, or to file a -waiver accepting such assessment, with privilege of paying in installments, as provided by statute. From this decree, the town of Manson has appealed. There was no appeal by the plaintiff, and we shall confine our discussion to questions raised on the behalf of the defendant. I. The testimony is largely directed to the question of the value of the tract of land assessed. The paving extends along the west border of plaintiff’s land for a distance of about 80 rods, and under our statute, the assessable area for such improvement is limited to a width of 300 feet. This area includes between 8 and 9 acres, out of a farm of 110 acres. The farm is shown to be a valuable and desirable property, well improved and cared for. It is used exclusively for agricultural purposes, but in location and character, could easily and no doubt profitably be platted and sold for residence purposes. As is not unusual upon such questions, witnesses equally well acquainted with the property, and, so far as we can tell, of equal intelligence and credibility, differ very widely in their estimates of its value, varying all the way from $1,000 to $4,000 per acre for the 300-foot strip. It is noticeable, however, that witnesses giving the highest estimates quite uniformly mention, as the ground of their judgment in this respect, the availability of the strip for conversion into town lots, and the prices which such lots might be expected to command. ¥e are disposed to think that such estimates do not afford a sufficient or safe basis [752] upon which to fix values for present assessment purposes. It is, of course, competent to show, not only the present use of the property, but its availability and desirability for other profitable uses; but the owner is under no compulsion to divide his land into city lots, or to use it otherwise than for farm purposes. Until he utilizes it in some other manner, it is assessable to him as so many acres, at whatever they may be worth in the market, and not as so many city lots. Taking the situation as it is disclosed by the entire record, we are disposed to say that the trial court did not unreasonably reduce the plaintiff’s assessment. The statute limits the authority of the town to make and enforce a special tax of this character to 25 per cent of the value of the property, and even as reduced by the court, this land of the plaintiff’s is computed at some $3,000 or more per acre, a by no means merely nominal valuation; and the decree to that extent will bo affirmed. 2. Municipal CORPORATIONS: public improvements : loss of right to pay assessment in installments. II. Exception is taken by the appellant to that part of the decree which grants appellee the privilege of signing the statutory waiver and paying the assessment in seven annual installments. Code Supplement, 1913, Section 825. The objection seems to be well taken. The statute does not extend the privilege of paying these assessments in installments to all property owners. After providing that the tax, when levied and certified, “shall be payable at the office of the county treasurer, ’ ’ the act proceeds as follows: “If the owner of any lot or parcel of land * * * shall, within 30 days from the date of such assessment, promise and agree in writing' * * * that, in consideration of having the right to pay his assessment in installments, he will not make any objection of illegality or irregularity as to the assessment or levy of such tax * * * and will pay said assessment with interest * * * such tax so levied * * * shall be payable in seven equal installments * * * but where no such promise or agreement in writing shall be made by the owner * * * within said time, then the whole of said special assessment so levied upon and against the property of such owner shall mature at one time, and be due and payable, with interest from the date of acceptance of the work by the city council.” [753] This seems to be in the nature of an inducement or reward offered to such property owners as are willing to waive and forego their right to object to or contest the validity or regularity of the tax, and execute their written promise to that effect within the prescribed period of 30 days from the date of the assessment; and such inducement is further emphasized by the added provision that, “where no such promise or agreement” is made by the owner “within said time,” then the whole of said Special assessment shall mature at one time. The plaintiff did not make such promise or agreement within the statutory limit of time, but contested both the validity of the tax and the amount of the assessment, and, so far as shown, never at any time offered to comply with the condition precedent to the privilege of paying his tax in installments. It follows that the decree appealed from will be modified by eliminating the clause allowing plaintiff to now execute the waiver and acquire the right to pay in-installments. It was his right to refuse to make the promise, and to take his chance at defeating or reducing the tax. Doing so, he has secured the benefit of a reduction of some $4,000 from the original schedule, or $3,000 from the original levy; and under the statute, we regard it as clear that he cannot now claim the advantage which was offered to him on condition of a waiver of his right to contest. Modified as above indicated, the decree will be affirmed.-— Modified and affirmed. Stevens, O. J., Arthur and De Graff, JJ., concur.