Stettheimer v. City of Butte

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The city of Butte caused a sidewalk and curbing to be constructed along the south side of Front Street, and levied a special assessment upon abutting property belonging to plaintiffs to defray the cost of the improvements in front of that property. There was imposed, also, a nominal charge for street sprinkling. This action was instituted to restrain the city and its treasurer from collecting the assessment, and after trial upon an agreed statement of facts a judgment was rendered and entered in favor of plaintiffs, and defendants appealed.

It is conceded that the proceedings taken by the city were regular in all respects and that the assessment is valid, if plaintiffs’ property is liable for the cost of the improvements. It is conceded, further, that the property is a part of the Frankie quartz lode mining claim, “which is and has always been held exclusively for mining purposes,” and that the improvements “do not enhance the value of the property for mining purposes.”

The only basis upon which special assessments for local im[1] provements are sustained is that the particular property charged derives a special benefit substantially commensurate with the burden imposed upon it, and it follows that, if a particular piece of property cannot be benefited by an improvement, it cannot be made to bear any part of the cost. (Hamilton on the Law of Special Assessments, secs. 233-241.)

Whether the construction of the sidewalk and curbing in [2,3] question results in special benefit to plaintiffs’ property was a question for determination by the legislative branch of the city government in the first instance, and its order for the construction of the improvements at the expense of the abutting property owners was a determination that plaintiffs’ property is specially benefited—a determination with which the courts will not interfere, except upon the ground of fraud or such manifest abuse of discretion as amounts to arbitrary action. The foregoing general rules are elementary, and are recognized by practically all of the authorities. If the property charged is restricted to a particular use, and cannot be applied to any other, the measure of benefits which the improvements will confer is its increased value for the special use to which it is so restricted. This is the effect of the decision in City of Butte v. School Dist. No. 1, 29 Mont. 336, 74 Pac. 869; but the rule cannot have any application to the present case, for plaintiffs do not contend that their property cannot be used for other than mining purposes. ‘

Except as indicated above, it is the rule now recognized [4, 5] generally that, if the property receives special benefits for any use to which it is reasonably adapted, it may be made to bear the cost of the improvements. (Louisville & N. R. R. Co. v. Barber Asphalt Pav. Co., 197 U. S. 430, 49 L. Ed. 819, 25 Sup. Ct. Rep. 466 [see, also, Rose’s U. S. Notes]; City of Vancouver v. Corporation etc. of Nisqually, 90 Wash. 319, 156 Pac. 383; Chicago, R. I. & P. Ry. Co. v. Centerville, 172 Iowa, 444, 153 N. W. 106, 154 N. W. 596; 2 Page & Jones on Taxation by Assessment, sec. 655; 28 Cyc. 1129; 25 R. C. L. 144.) The reason for this rule is manifest, and the present ease furnishes an apt illustration of the absurdity to which a contrary doctrine might lead. The record discloses that the properties adjacent to plaintiffs’ property are occupied by buildings devoted to business and residential purposes, and no one wo7ild have the temerity to insist that those properties may not be specially benefited by sidewalks and curbing constructed in front of them. If this court should hold that, because of its present use for mining purposes, plaintiffs’ property may not be charged with auy part of the cost of the improvements, and if, upon the day the remittitur is issued, plaintiffs should abandon the present use and devote their property to business or residential purposes, or sell it to others who should so change the use, then the property would benefit by the improvements, but at the city’s expense.

Further discussion is unnecessary. "We deem the question before us not open to serious controversy. Prima, facie plaintiffs’ property will be specially benefited to the extent of the charge imposed upon it, and the burden was upon the owners to show, as they have not shown, that because of some special circumstances their property will not be specially benefited, and that the city acted arbitrarily in making the assessment.

The judgment is reversed and the cause remanded, with directions to enter judgment dismissing the complaint.

Reversed with directions.

Mr. Chief Justice Brantlt and Associate Justices Cooper and Galen concur.