#### Lincoln Joint Stock Land Bank, Appellee, v. Board of Review of Sioux City, Appellant.

No. 45027.

February 13, 1940.

*1137Robert P. Munger, for appellee.

Y. O. DeWitt and Ralph W. Crary, for appellant.

Mitchell, J.

In January 1937, the city assessor of Sioux City, in accordance with tbe requirements of law, assessed tbe real estate involved in this action, which is a farm known as tbe “Judge Kennedy Farm”, and fixed the value thereof at $34,402, of which tbe sum of $10,000 represented tbe value of tbe buildings.

In conformity with statutory law, the Lincoln Joint Stock Land Bank, tbe owner of tbe property appealed to tbe board of review of tbe city of Sioux City, contending in substance that tbe real estate bad been assessed in excess of its actual value. Tbe board of review denied tbe relief prayed for and tbe property owner perfected an appeal to tbe district court. There was a bearing at which evidence was offered, and tbe lower court placed a value of $10,000 upon tbe buddings and improvements, and reduced tbe assessed value of tbe land from $24,402 to $5,572.65; in other words, reduced tbe value of tbe land per acre from $65.58 to $15. The city of Sioux City bas appealed.

Tbe statutory provisions relative to tbe assessment involved in this case are contained in section 7109 of tbe 1935 Code of Iowa which provides as follows:

“All property subject to taxation shall be'assessed at its actual value, which shall be entered opposite each item. Tbe terms ‘actual value,’ ‘assessed value’ and ‘taxable value’ shall hereafter be construed as referring to. ‘actual value’.

“The tax rate shall be applied to the actual value, except as otherwise provided.

“In arriving at said actual value the assessor shall take into consideration its productive and earning capacity, if any, past, present, and prospective, its market value, if any, and all other matters that affect the actual value of tbe property; *1138and the burden of proof shall be upon any complainant attacking such valuation as excessive, inadequate or inequitable.”

It will be noted that the last clause of the cited statute is “the burden of proof shall be upon any complainant attacking such valuation as excessive, inadequate or inequitable.”

In the ease of Hawkeye Portland Cement Co. v. Board of Review, 205 Iowa 161, 165, 217 N. W. 837, 840, this court discusses section 7109 of the Code, speaking through Justice Wagner:

.. “ ‘In arriving at said actual value the assessor shall take into consideration its productive and earning capacity, if any, past,, present, and prospective, its market .value, if any, and all other, matters that affect the-actual value of the property.’ Section 7109, Code of 1924. , .

“It thus becomes apparent that the legislature had in mind that there.might be property subject to taxation which would have no market value.. Under the .present statute, the assessor is to take into consideration the market value, if any, of the property. True, he is to take into consideration the productive and earning capacity, if any, past, present, and prospective; but these are all elements which. go to make up market value, as well as actual value. If the property has a market value, then, as it occurs to us, there can ordinarily be no distinction between market value and actual value. In Hetland v. Bilstad, 140 Iowa 411 [118 N. W. 422], upon the question of value we said:

“ ‘By “value,” in. common parlance, is meant “market value,” which is no other than the fair value of property as between one who wants to purchase and another who desires to sell. In Jonas v. Noel, 98 Tenn. 440 (39 S. W. 724, 36 L. R.A. 862), it is said that “so difficult a matter, however, is it to separate the ideas of ‘value’ and ‘market value,’ that it will be found text-writers and courts have frequently used these terms as interchangeable, and both as being, the equivalent of ‘actual value.’ ”***’”

With these rules of law in mind, let us look at the record that confronts us. The parties have agreed upon the value of the buildings and the improvements, fixing the amount at *1139$10,000. The only question before ns, is the value of the real estate.

The farm consists of 371.51 acres situated entirely within the corporate limits of Sioux City. It is the largest single tract. The major portion of the farm is very rough with regular “hogback” and bluffs. The top soil is washed off down to the clay. The fertility of the hills is gone and the only place anything can be raised is in the small valleys where the silt has been washed down. One hundred and twenty acres have been infested with an obnoxious weed, commonly known as “Creeping Jenny”. Why it is ealled “Creeping Jenny” is not shown in the record, but it does clearly set out that ‘ ‘ Creep-' ing Jenny” is an obnoxious weed that makes it impossible to raise even grass crops upon the land until the weed has been eradicated. In 1922 the farm was practically all in bluegrass and alfalfa and was being operated successfully as a dairy farm, then someone had the smart idea of plowing up the farm and putting it in crops. First the rains washed off the soil on the hills, then the sun and the dry weather destroyed the crops in the valleys. Since 1935 when appellee acquired the real estate, it has tried to rehabilitate 30 to 50 acres yearly by planting alfalfa, but the dry weather, combined with the “Creeping Jenny”, has made it impossible to make any headway in restoring the farm. The income of the farm for 1937 was $3 per acre or about $1,114 for the whole tract. The taxes for the same year were $1,206.82. In other words, the taxes exceeded the income, and this was true of the two prior years that appellees owned the farm.

The evidence consists of the testimony of three witnesses on the part of the appellees. They all qualified as witnesses capable of expressing an opinion as to the actual value. They took into consideration in arriving at their opinion as to the value the elements set out in code section 7109. The production and earning capacity of the land, past, present and prospective, its location and the value of adjoining lands, and then fixed a value for the land at between $10 and $15 per acre.

The appellant offered only the testimony of the assessor. He testified that he valued it on the same basis as adjoining lands. That he took into consideration the earnings, both past, present ánd future; the possibility of the land improving in *1140actual value in future years because of tbe growth of tbe city; tbat be took into consideration tbe rentals and fixed wbat in bis opinion was tbe actual value.. He overlooked such items as tbe productivity of the soil, and tbat 120 acres were covered with “Creeping Jenny”. He admitted tbat there was no farm land in tbe district similar to tbe farm involved in this case and tbat he did not know tbe actual value of the-land.

Thus we are confronted with a case, in which it is admitted that tbe land is taxed at more than its actual Avalué. Tbe legislature said tbat land Avas not to be taxed in excess of its actual value. Tbe appellant claims because tbe same system was used in arriving at tbe value as was used in arriving at tbe value of other farm land in tbe district, tbe value placed by tbe assessor should not be disturbed. Tbe answer to this is tbat tbe record clearly shows there was no other land in tbe district similar to this farm.. . ' •

Tbe appellant relies on the recent opinion of this court in the case of Butler v. City of Des Moines, 219 Iowa 956, 961, 258 N. W. 755, 758, opinion by Justice Powers:

“It is the’ judgment of tbe assessor which tbe statute requires in making ’these assessments. So long as bis action is not arbitrary or capricious or so wholly out of line with tbe actual values as to give rise to tbe inference tbat for some reason he has not properly discharged bis duty, tbe assessment made by him, and confirmed by tbe local board of review, should not be disturbed by tbe court.”

We have no fault to find with the cited case, but tbe facts in this case are entirely different from tbe facts in tbe case at bar.

We recognize tbe impossibility of absolute correctness in determining' tbe actual value' of this or any other property. Our problem in tbe case at bar is made even more difficult by the fact tbat tbe property stands by itself and cannot be fairly compared with any other tract or property within tbe city limits of Sioux City.

The Avalué placed by the assessor is over four times wbat tbe other witnesses testify is its actual value. But let it be said to tbe credit of'the assessor, tbat be frankly states be does not know the actual value. Taking into consideration tbe earnings and tbe elements of value set out in code section 7109, as *1141shown by this record, we believe that the actual value of the land involved is $30 per acre, and this case is reversed with instruction to enter a decree in conformity herewith. — Beversed and remanded.

HamiltoN, C. J., and BiChards, Hale, Millee, and Bliss, JJ., concur.