
    Deiman et al. v. The City of Fort Madison.
    1. Municipal corporation! taxation oe agricultural lands: estoppel. Lands lying within the extended limits of a city which are used exclusively for agricultural purposes, which have not been benefited by the current expenditures of the city, and are not necessary for municipal uses, are not liable to taxation for city purposes. The cases of. O’ Hare v. The City of Dubuque, 22 Iowa, 144,' and Deeds v. Sanborn, 36 id. 419, followed.
    3.-That the owner of such lands has paid taxes thereon to the city for several years does not estop him from resisting the right of the city to collect in the present case.
    
      Appeal from Lee District Court.
    
    Friday, January 27.
    The appellees- filed their petition in equity April 15, 1868, stating that they were severally the owners of certain lands, described in tbe petition, situated in what is known as “West Madison” or “Douglass’ addition to the city of Fort Madison;” that tbe city authorities of Fort Madison were unlawfully attempting to levy and collect taxes for city purposes upon said lands, setting out the facts upon which they claim that such action of tbe city is unlawful, and asking an injunction against tbe defendants, restraining and enjoining them from levying and collecting such unlawful taxes; and, on tbe same day, a preliminary writ was allowed by Hon. Edmund J aeger, county judge.
    Tbe defendants answered, and on a final bearing tbe injunction was made perpetual in favor of Henry Dqiman, Ernst Hinzie, Phillip Yeile, John Yan Yalkenburg, and M. J. D. Yan Yalkenburg, and dissolved as to tbe other plaintiffs. Tbe city appeals.
    Tbe city of Fort Madison was incorporated by a special act passed January 25, 1848. See eb. 64, Laws first Gen. Assembly. Tbe second section of tbe act prescribes that “tbe limits and boundaries of tbe town shall be as defined and laid down on the plat of said town, recorded in tbe recorder’s office of Lee county, and extending to tbe middle of tbe "main channel of tbe Mississippi river, and co-extensive along tbe middle of said main channel east and west, with tbe limits of said town.” Tbe territory described in plaintiff’s petition was not then included within tbe corporate limits of tbe town, as established by the charter and shown on tbe plat referred to. Tbe corporate limits embraced tbe territory bounded on tbe west by Occidental street, on tbe east by Spruce street, on tbe north by North street, and on tbe south by tbe Mississippi river.
    On tbe 6th and 7th days of April, 1855, Mary A. P. Douglass, who was tbe owner of about seventy-nine acres of land adjoining tbe corporate limits of tbe town on the west, caused a survey and plat to be made of her said land into blocks of from about two to three and one-half acres each, with certain streets, which was acknowledged and recorded as “West Madison,” in accordance with chapter forty-one of the Code of 1851, which conferred authority upon the owners of real property, who might desire to lay out a village or town on their own land.
    Occidental street, in the town of Fort Madison, remained the western boundary of the town until, about the 7th day of July, 1857, the city authorities, by virtue of authority claimed to have been conferred by an act of the fifth general assembly, enacted an ordinance (No. 83) extending the boundaries of the town so as to include the village of “ West Madison.”
    On the 23d of March, 1863, the mayor and aldermen of Fort Madison passed another ordinance (No. 116) excluding from the corporate limits of the town the said village of West Madison, and re-establishing Occidental street as the west boundary of the town. Such ordinance is as follows:
    An Ordinance defining the Boundary on the west op the- town op Fort Madison.
    “ Section 1. Be it ordained by the mayor and aldermen of the town of Fort Madison, that the boundary of said town on the west side shall be, and is hereby established, as follows, to wit: Commencing on the north side of North street, opposite of the west line of Occidental street, running thence due south along Occidental street to the northern boundary line at the Half-Breed tract; thence westerly along said boundary to the west line of block No. 4, in Allen’s addition to the town of Fort Madison; thence due south to a point in the middle of the channel of the Mississippi river.
    
      “ § 2. That all ordinances or parts of ordinances heretofore passed and approved conflicting with the provisions of this ordinance be and are hereby repealed.
    
      “ § 3. That this ordinance shall take effect so soon as the same shall be published according to law.
    “ Passed and approved March 23, 1863.
    (Signed) “P. GILLIGAN, Mayor.
    
    “Attest, Y. Buechel, Cleric”
    
    On the 6th of December, 1865 (after the organization of the town had been changed by a vote of the citizens of the town under the general incorporation law of 1858), an ordinance was passed purporting to re-extend the corporate limits of the town (then city) on the west, so as to again include therein the village of West Madison, making Hanover street (a street of said village) the western boundary of the city.
    The following further facts are agreed to by counsel for the respective parties:
    1. Blocks 8, 9, 10, 11, 22 and 23 are under one fence and used excluswelnj for fcunning .purposes. No house on it. Owned by Yan Yalkenburg. 2. Block 21 owned by Repensell — fenced and cultivated, but no house. 3. Block 20 owned by Yan Yalkenburg — fenced and cultivated for farming purposes. No house on it. 4. Block 19 owned by Briens — fenced — no house — cultivated. 5. Block 18 fenced and cultivated, owned by Yegans, and house on it. 6. Block 17 owned by A. Beimer — fenced and cultivated. (The last five blocks have virtually no partition fence — rotted down — once was fenced in blocks —about 16 acres in all.) 7. Blocks 14 and 15 fenced — cultivated — no partition fence between them — owned by Neiters — no house. Block 13 fenced and cultivated, and house on it — owned by Repensell. 8. Block 16 owned by Schultze — fenced and cultivated — no house. (Last four blocks described have no partition fence, and amount to 12 acres, and used for farming purposes and cultivated.) 9. Block 7 fenced and cultivated as a vineyard and for horticulture — house on it, owned by Theodore Nabers. 10. Block 12 owned by Wenke — fenced recently and first crop now on it. 11. South J block 6 fenced and cultivated as a garden, and house on it. North f of block 6 the same — owned by Yan Yalkenburg — used for farming purposes, raising corn and oats. 12. Block 5 owned by Heying — fenced, in vineyard and gardens and horticulture — -house on it, and until this spring no partition fence between this and block 6. 13. Block 4, south owner unknown — fenced and three houses on it. North ^ of same block owned by Nelle — fenced — house and cooper shop — business carried on. 14. Block 3 owned by Nelle — fenced and cultivated for garden and mostly farming purposes — house on it. 15. Deiman has twelve acres north of the Fort Madison and Franklin road, used for farming purposes exclusively, and Judge Yiele, Deiman, Hinzie and Mittendorf have twenty-eight acres in severalty. 16. All of above lots and land, worth, independent of all improvements, $150 an acre in 1855, and are worth no more than that now. 17. No money expended by the city for improvements on any of the above lands west of Occidental street. Two bridges put over French’s creek by the city of Fort Madison, east of the above lands. Bridges are fifty rods east of Occidental street. 18. No street is open except Fifth street, which unites with, and is the Fort Madison and Franklin road. 19. The Fort Madison and Franklin road runs adjoining said West Madison or Douglass addition on the south. 20. No alleys have been opened through said Douglass’ addition, but the people residing in the houses above referred to have to go to and from their premises over the common uninclosed parts. 21. Out-lots of Fort Madison 1139,1044,1085, 1086,1087, 1080, 1081 and 1082, are uninclosed, with no buildings upon them. 1087, 1088, 1077 and 1079 are inclosed and used for farming purposes.
    Note.— By the term “ farming purposes ” is meant the cultivation of corn, wheat, potatoes, rye, oats, sweet-potatoes, etc.
    22. No one of those living on the lands aforesaid voted on the question at the special election-in 1865, for the purpose of abandoning the old charter- of said town of Fort Madison, and accepting the provisions of chapter 5 of Revision of 1860 — the general law incorporating cities and towns.
    23. The exhibits attached to petition and answer admitted as evidence. Exhibit “ A,” of replication admitted as evidence to show diagram of fences.
    24. Also admitted, that, at the time West Madison or Douglass’ addition was platted and dedicated, there were no improvements on it of any kind, and it consisted of seventy-nine acres. Was platted when Sears was surveyor in 1855.
    25. Also admitted, that the city of Fort Madison has enough ground to do the ordinary business transactions of its population, without the addition of the territory included in the land claimed by plaintiffs.”
    From the decree rendered by the district court upon the pleadings and forgoing facts, the city of Fort Madison alone appeals.
    
      Fra/nois Semple for the appellant.
    
      John Vcm VaTkenbwrg for the appellees.
   Miller, J.

Whether the power conferred by the act of the fifth general assembly to enlarge the boundaries of the town of Fort Madison, by implication, conferred the power to contract such boundaries, and whether the plaintiffs’ property in West Madison, at the commencement of this action, was within the legal corporate limits of Fort Madison, we need not determine, inasmuch as we dispose of the case upon the other questions involved.

Under the former adjudications of this court, and the admitted facts of this case, it would seem clear that the appellees’ lands are not hable to the taxes proposed to be imposed thereon by the city. In the case of Morford v. Unger, 8 Iowa, 82, it was held that “ where land adjoining a city or town is vacant or a cultivated farm, occupied by the owner for agricultural purposes, and not required for streets or houses or other purposes of a town, and solely for the purpose of increasing its revenue, it is brought within the taxing power by an enlargement of the city limits, such an act, though on its face providing only for the extension of the city limits, is, in reality, nothing more than authority to the city to tax the land to a certain distance outside of its limits; and is, in effect, the taking of private property without just compensation, within the spirit and meaning of the constitution.”

In Langworthy v. The City of Dubuque, 13 Iowa, 86, the case of Morford v. Unger was re-affirmed, and it was further held, that “ mere submission on the part of the citizen, except in extreme cases, to an illegal levy of taxes, will not be construed into a recognition of the right, to the extent of estopping him from subsequently denying it.” In the case in 16 Iowa, 271, between the same parties, it was held that while the enlargement of the boundaries of a municipal corporation, whereby the property of individuals is brought within the corporate limits, without their consent, and thereby subjected to municipal taxation, may not be an infringement of the constitution by taking private property for public use, it may so operate when such extension is unreasonable, and embraces lands and territory not needed for buildings and population, but which is taxed for the benefit of the territory which is thus needed and occupied,” and that “ the court will interfere to restrain municipal taxation, where practicable, in cases in which it is shown that the proprietor of the pi'op&rty taxed cannot be benefited in a municipal point of view.” In Fulton v. The City of Davenport, 17 Iowa, 404, the principle annonnced in the case last cited was re-affirmed. In Buel v. Ball, 20 Iowa, 282,. it was held that “ the fact that lands are embraced within the corporate limits of a municipal corporation, as defined by the original charter, does not confer upon the corporation the power to levy taxes thereon for municipal purposes, regardless of their situation in other respects, or of the use made of them; and the fact that the owner of agricultural lands withiu the limits of a municipal corporations asked for and aided in procuring the original charter or act of incorporation, does not affect the right of such corporation to levy taxes on such lands.”

It was further held in that case that “ the payment, for several years, of municipal taxes, levied upon agricultural lands, does not estop the owner of his right to challenge the legality of the levy?’ In O' Hare v. The City of Dubuque, 22 Iowa, 144, it was held that “a city out-lot situated within the extended limits of the city, which is not accessible by any street leading to the business part of the city, and has no additions or city improvements near it; which is surrounded, for some distance in, every direction, by lands used exclusively for agricultural and mineral purposes, and is not benefited by the current expenditures of the city,” is not liable to municipal taxation. And in Deeds v. Sanborn, 26 Iowa, 419, it was held that “ lands lying within the' limits of an addition to a city, though within the corporate limits, which are used for agricultural purposes, which are remote from the city proper and to or near which no streets or alleys have ever been worked, are not liable to taxation for city purposes.” We have thus, in detail, referred to the various decisions of this court upon the questions involved in this case, and find that all of the questions herein, are covered by those adjudications.

In the ease before us the plaintiff’s lands are used exclur sivety for agriaulimral^mr^poses ; they have not been benefited by the current expenditures of the city; no money has ever been expended by the city for improvements on any of said lands; no street or alley has ever been opened or worked except Fifth street, which unites with and is the “ Fort Madison and Franklin road” on the south of these lands; at the time of surveying and platting said West Madison there were no improvements thereon of any kind; the lands are not needed for buildings, streets or any other city purposes; some of the out-lots of the city proper are uninclosed, and others are used exclusively for agricultural purposes, showing that not all of the territory within the city proper is needed for any city purpose, and that the lands of plaintiffs are sought to be brought within the jurisdiction of the city solely for the purpose of increasing its revenue, thereby taxing these lands for the •benefit of others owning property in the city. The lands of the plaintiffs have not been enhanced in value since they have been within the corporate limits.

That the plaintiffs’ grantor dedicated her land, as shown by the survey and plat, or that the plaintiffs paid taxes to the city for several years, does not, as we have seen, estop them from challenging the legality of the levy resisted in this suit. Upon the principles settled in the cases refered to, we are clear that the appellees’ lands are not liable to the burden of municipal taxation, and the decree of the district court is therefore

Affirmed.

Beck. J., took no part in the decision.  