City of Burlington v. Gilbert

Miller, J,

1. MtnsioiPAXj corporation: improvement of streets * estoppel. ‘ — I. It is insisted by the appellants that the city had no power to improve the streets at the expense of the defendants unless two-thirds of the property » 1 _ n .. , _ , ? , owners ox each block to be improved petitioned i. x therefor; that less than that number of the property owners on the block or square'on which appellants’ property is situated signed the petition asking for the improvement of the street.-

The clause of the city charter cited in support of this position is as follows: “ The city council shall have power to cause to be opened, paved, re-paved, or improved any street, lane, alley, market space or public landing, on petition of not less than two-thirds of the number of owners of any square or parts of a square of said city, bounding or abutting on such street,” etc. Section 25 of “An act to incorporate the city of Burlington,” approved June 10, 1845. The district court found that-two thirds of the owners of property to be charged with the cost of the improvement of the street had signed the petition therefor, and that in this respect the proceedings of the city council in ordering the improvement were authorized by the charter. "Whether the court intended to find that two-thirds of the owners' of property to be charged in each Mock had so petitioned is not clearly manifest, nor does the finding imply that two-thirds of the aggregate number of owners of property to be charged with the improvement, without reference to the number of owners in each block, had thus signed.

We do not, however, regard it of any importance to ascertain the true construction of this finding of the court, as we dispose of this objection on other grounds.

Had the petition not been signed by the requisite number of property owners, the action of the city upon the petition might not bind those who had not signed the petition. As to them the action of the city in assessing the cost of improvement to. their property might be without authority and invalid. Whether it would be so or not, we do not decide. But in this case the defendant Gilbert, with forty-eight others, signed and presented the petition to the city council, asking the improvement to be made that was made, and when the city solicitor reported that the petition was not signed by a sufficient number of property owners, it was taken by the petitioners and additional signatures obtained, and again presented to the city council for action thereon. There is no claim that the defendant signed the petition with the understanding that it was to be presented and he bound thereby, only after a sufficient number of property owners had signed it. ■ On the othei hand, the record shows that the petition, when signed by defendant and forty-eight others, was by them presented to the city council, and that if the petition was not sufficiently signed he knew the fact. And we are of opinion that, after having thus signed and presented the petition to the city council, thereby inducing the city to enter upon the improvement requested in the petition, the defendant is estopped from objecting that his petition was not sufficiently signed. The defendant, by his acts, consented and agreed in writing that the city should make the improvement designated in the petition, and assess his property with its due proportion of the cost thereof, and he cannot be allowed to repudiate that agreement on the ground that other parties should have entered into the same agreement. While they may not be bound he is.

In this holding we are supported by the following cases: The People v. Goodwin, 1 Seld. 573; Kellogg, Treasurer of Lorain county, v. Ely, 15 Ohio St. 66. In the case last cited it was held, where county commissioners, acting ostensibly under “a law to provide for locating, establishing and constructing ditches, drains,” etc., have established and constructed a ditch, and to pay the cost thereof have levied an assessment on lands of persons benefited thereby, and a party on whose lands such ditch has been constructed has stood by and failed to resort to any remedy, legal or equitable, until after the ditch was constructed, that a court of equity will not interfere by injunction to prevent the collection of such assessment, even if it be assumed that the proceedings of the commissioners have so far failed to conform to the law as to render them wholly illegal and void. The court in that case went much further than it is necessary for us to go in this. In that case the defendant was held estopped by his silence. In this ease we hold him to be estopped by his express consent in writing, connected with the other circumstances of the case.

2. — mistake grade viines; titfoners. P° II. It is insisted by appellants’counsel that the grade and improvement of the street were illegal, because entirely different from that asked for by the petitioners. By reference to the ordinance passed by the city council, providing for the grading and improvement of the street, we see that it is in exact conformity with the petition presented by appellants and others, requesting such grade and improvement. The initial point, ascent and grade line mentioned in the petition were adopted and incorporated into the ordinance, and the work was done in accordance therewith. The only difficulty in the matter seems to be that the grade asked for and adopted did not terminate at the point on the surface where the petitioners supposed it would, and the cut was deeper than they supposed it would be, according to the grade asked for by appellants and established by the city ordinance. It is insisted on behalf of appellants that this mistake was made by them in consequence of an erroneous survey and plat of the street in the city engineer’s office — said plat not showing the surface lines correctly; that, acting upon this plat as correct, the appellants asked for the grade stated in their petition, and in doing so were governed by the previous survey and the manner in which their property would loe affeeted. There is nothing in the record to show that the city council were advised of the motives and objects governing the petitioners further than what was contained in the petition. The petition asked for a change of grade as therein indicated — and the improvement of the street upon the grade suggested. The city strictly followed the suggestions of the petition in the change of the grade. Whether the surface lines of the street, as shown by the plat in the city engineer’s office, were called to the attention of the council does not appear. Under the circumstances disclosed in the case the city was no more bound by any errors or mistakes in the plat than were the petitioners, nor any less so. The facts of the case, viz.: the relation of the surface to the grade asked for and adopted, the depth of cut at any given point, and the point on the surface where the grade line would terminate, were all capable of being definitely ascertained, and were equally within the reach of all the parties. There is nothing in the record showing that the city authorities, any more than the appellants, knew the true relation of the surface lines to the grade lines. Both parties, however, could, by the exercise of ordinary diligence, have known certainly all these facts. The appellants insist that the grade established was not such as they intended, or supposed would be the result. There is nothing to show that the city council was mistaken in its supposition or intention — that the result was in any respect different from the intention of the council in the passage of the ordinance. The means of correct information as to all the facts being open alike to both parties, and there being no fraud on the part of the city, there is no ground upon which the appellants are entitled to be relieved from a mistake which ordinary vigilance would have prevented. Will. Eq. Juris. 70, 71; Penny v. Martin, 4 Johns. Ch. 566; Taylor v. Fleet, 4 Barb. 95; Butcher & Cox v. Buchanan, 17 Iowa, 81.

Mutuality, also, is an important element, entering into such mistakes as will be corrected by courts of equity. Pierson v. Armstrong, 1 Iowa, per Woodward, J., 287; Longhurst v. Star Ins. Co., 19 id. 364.

"We have seen that it does not appear that there was any mistake on the part of the city authorities in the premises. The ordinance was passed authorizing and directing the grade precisely as appellant asked it to be done, and in the construction of its provisions the city cor reetly adopted the “ initial point, ascent, and grade-line ” therein prescribed, rejecting the surface line, when inconsistent with the former.

It is insisted by appellants’ counsel that it was the evident intention that the grade should terminate at a certain point, and hence the city should have been governed by that point. ¥e fail to- find in the record any evidence of such intention, at least none which will justify us in' holding the finding of the court on this point to be contrary to the evidence. The surface point mentioned in the petition and ordinance is mere matter of description; this designation conflicted with the other calls in the ordinance; both could not be followed. There is no express direction on the face of the ordinance which shall be followed in case of conflict. JBut it seems clear to us the construction adopted by the city was, under the circumstances, the correct one, and the ruling of the district court on this point was not erroneous.

3_estab_ cha^enofand grade. III. From what has been said, It follows that as the acts of the city in the re-grading of the street in question were not illegal, but, as we have seen, in strict con-f°rrQhy with the petition of the appellant, who waived Eis claim for damages under the statute, the finding of the court below on the appellant’s cross demand was not erroneous. The city has the right to establish grades and to change the same as it may deem proper, and in doing so, where it exercises ordinary care and shill, it is not liable for damages to those whose property is consequently injured, except as provided by statutory enactment. The owner of property thus consequentially injured has no common-law right of action against the city where the work has been performed by the city without negligence. Coates & Patchen v. City of Davenport, 9 Iowa, 227; Freeland v. City of Muscatine, id. 461; Cole v. The City of Muscatine, 14 id. 296; see, also, Slatten v. D. V. R. R. Co., 29 id. 148. And where the statute gives damages resulting from a change of grade, they must be ascertained strictly in tbe manner provided in tbe statute. Cole v. The City of Muscatine, swpra.

Tbe appellant waived bis 'claim for damages in writing before tbe city acted in tbe premises. Tbis waiver doubtless was tbe basis of tbe action of tbe- city authorities. At least the appellants offered tbis as an inducement to tbe city’s action. Tbat action which appellant asked was taken ‘by tbe city in conformity with bis request and •under tbe inducements thus presented by him, and no steps have been taken to ascertain the damages in tbe only manner prescribed by law.

Tbe judgment of tbe district court must be

Affirmed.