MR. JUSTICE HOLLOWAY
delivered the opinion of the ■court.
On August 1, 1906, the city council of Helena passed, and the mayor approved, a resolution entitled: “A resolution creating special improvement district No. 17, describing the boundaries thereof, the character of improvements to be made therein and the estimated cost thereof.” The resolution designates August 13, 1906, and the city council chamber, as the time and place for hearing objections. On August 13, the resolution was finally adopted. The purpose for Which the district was created was to procure a right of way for and construct a storm sewer. Within the boundaries of the district is property owned by the plaintiff. In 1907 the city levied a tax upon all the property •.situated within the district to defray the cost of the improve[340]*340ment. The plaintiff declined to pay the tax and instituted this suit to secure an injunction restraining the city from attempting to enforce the tax against his property. In addition to the facts narrated above, the complaint sets forth: “That the said described real estate is situated within the boundaries of said special improvement district No. 17, but lies below the mouth or outlet of the storm sewer provided for in said resolution, and is so situated that no water, drainage, or sewage matter of any kind does or can be - made to flow into or through said storm sewer, or any part thereof, and said real estate does not, and. because of its situation cannot, receive or realize any benefit or advantage from, or by means of, said storm sewer.” To this complaint a general demurrer-was interposed and sustained, and plaintiff, electing to stand upon his pleading, suffered judgment to be entered against him, and appeals.
The regularity of the proceedings of the city in creating the special improvement district is not called in question. From the facts pleaded and the legal presumptions arising therefrom, it may be conceded that the resolution was regularly passed; that its -contents are sufficient; that the required notice was given; and that plaintiff did not appear or object to the improvement or to the inclusion of his property within the district. The position of the appellant is that, since his property is so situated that it cannot be drained by the sewer and cannot receive any benefits from the improvement, he was not required to heed the notice or object to the proceeding before the council, but may invoke the aid of a court of equity for relief in the first instance. The character of the improvement is such as to make applicable section 3384, Revised Codes, which reads as follows: “Whenever a sewer serves as an outlet for the district or lateral sewers which drain a limited area, but which cannot justly be considered a public sewer benefiting the entire city or town, its cost, or any part thereof may be defrayed by special assessment levied against all the property which it serves as a drain, each lot or parcel of land benefited- thereby to be assessed in the 'proportion which its area bears to the area of all the property affected or benefited thereby, exclusive of streets, alleys and [341]*341public places. Said levy may be made at the time of the construction of said sewer or at any future time. ’ ’
If it appeared from the face of the council proceedings that plaintiff’s property is so situated that it is a physical impossibility for it to be benefited, or that the amount of the tax assessed against it clearly exceeds the benefit to be derived from the improvement, then the complaint would be invulnerable; for it is the settled law in this country that “the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.” (Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. [1] 443.) “The whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. ’ ’ (McCormack v. Patchin, 53 Mo. 33, 14 Am. Rep. 440.) “Special taxes cannot be levied by a municipality unless the property charged receives a corresponding physical, material, and substantial benefit therefrom.” (City of Owensboro v. Sweeney, 129 Ky. 607, 130 Am. St. Rep. 477, 111 S. W. 364, 18 L. R. A., n. s., 181.) And the meaning of “special benefit” is very clearly stated by the supreme court of Iowa in Bennett v. City of Emmetsburg, 138 Iowa, 67, 115 N. W. 582, as follows: “A lot derives ‘special benefit’ from the construction of a sewer, within the meaning of a statute and ordinance providing that assessments shall be made in proportion to special benefits, when the sewer is so situated and constructed that connection can be had therewith, as the opportunity presented for individual use determines the question of special benefit.”
Dismissing these questions from further consideration as settled beyond controversy, there remains but the single inquiry: May a property-holder invoke the aid of a court of equity in the first instance to relieve him from an assessment for special improvements upon the ground that his property is so situated that it is impossible for it to obtain any benefit? The respondent city contends that, since the legislature has designated the city [342]*342council as a special tribunal before which objections to the creation of the proposed improvement district and to the proposed tax may be made and heard, the presentation of objections to that tribunal is a condition precedent to the right of the property-holder to go into a court of equity for relief, in the absence of fraud or lack of jurisdiction appearing upon the face of the council’s proceedings. The purpose of requiring notice to be given and a hearing had by the council upon any objections to the creation of a special improvement district or assessment made therefor, is to give an opportunity to any interested property-holder to be heard and to show, if he can, that his property will not derive any special benefit from the improvement, or that his property is made to bear an unjust proportion of the burden of taxation, but equally, also, is it to enable the city to correct any errors or mistakes, and, if any appear, to readjust itself before expense has been incurred or warrants have been issued. In the present instance, if the property of plaintiff and others similarly situated can be relieved from the tax, innocent third persons who have done the work and received the warrants must suffer, or the owners of the remaining property within the district must bear the burden of the entire assessment. It may be that a particular property-holder whose property will be benefited was willing to have the improvement made, provided all the property within the proposed boundaries of the district shared in the expense, but would not have been willing if one-half of the property was excluded and the remaining portion left to bear the entire burden.
While we have not been able to find any ease directly in point and the decision of the question presented is not without ,[2] difficulty, it seems to us that upon principle the doctrine of estoppel in pais
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MR. JUSTICE HOLLOWAY
delivered the opinion of the ■court.
On August 1, 1906, the city council of Helena passed, and the mayor approved, a resolution entitled: “A resolution creating special improvement district No. 17, describing the boundaries thereof, the character of improvements to be made therein and the estimated cost thereof.” The resolution designates August 13, 1906, and the city council chamber, as the time and place for hearing objections. On August 13, the resolution was finally adopted. The purpose for Which the district was created was to procure a right of way for and construct a storm sewer. Within the boundaries of the district is property owned by the plaintiff. In 1907 the city levied a tax upon all the property •.situated within the district to defray the cost of the improve[340]*340ment. The plaintiff declined to pay the tax and instituted this suit to secure an injunction restraining the city from attempting to enforce the tax against his property. In addition to the facts narrated above, the complaint sets forth: “That the said described real estate is situated within the boundaries of said special improvement district No. 17, but lies below the mouth or outlet of the storm sewer provided for in said resolution, and is so situated that no water, drainage, or sewage matter of any kind does or can be - made to flow into or through said storm sewer, or any part thereof, and said real estate does not, and. because of its situation cannot, receive or realize any benefit or advantage from, or by means of, said storm sewer.” To this complaint a general demurrer-was interposed and sustained, and plaintiff, electing to stand upon his pleading, suffered judgment to be entered against him, and appeals.
The regularity of the proceedings of the city in creating the special improvement district is not called in question. From the facts pleaded and the legal presumptions arising therefrom, it may be conceded that the resolution was regularly passed; that its -contents are sufficient; that the required notice was given; and that plaintiff did not appear or object to the improvement or to the inclusion of his property within the district. The position of the appellant is that, since his property is so situated that it cannot be drained by the sewer and cannot receive any benefits from the improvement, he was not required to heed the notice or object to the proceeding before the council, but may invoke the aid of a court of equity for relief in the first instance. The character of the improvement is such as to make applicable section 3384, Revised Codes, which reads as follows: “Whenever a sewer serves as an outlet for the district or lateral sewers which drain a limited area, but which cannot justly be considered a public sewer benefiting the entire city or town, its cost, or any part thereof may be defrayed by special assessment levied against all the property which it serves as a drain, each lot or parcel of land benefited- thereby to be assessed in the 'proportion which its area bears to the area of all the property affected or benefited thereby, exclusive of streets, alleys and [341]*341public places. Said levy may be made at the time of the construction of said sewer or at any future time. ’ ’
If it appeared from the face of the council proceedings that plaintiff’s property is so situated that it is a physical impossibility for it to be benefited, or that the amount of the tax assessed against it clearly exceeds the benefit to be derived from the improvement, then the complaint would be invulnerable; for it is the settled law in this country that “the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.” (Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. [1] 443.) “The whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. ’ ’ (McCormack v. Patchin, 53 Mo. 33, 14 Am. Rep. 440.) “Special taxes cannot be levied by a municipality unless the property charged receives a corresponding physical, material, and substantial benefit therefrom.” (City of Owensboro v. Sweeney, 129 Ky. 607, 130 Am. St. Rep. 477, 111 S. W. 364, 18 L. R. A., n. s., 181.) And the meaning of “special benefit” is very clearly stated by the supreme court of Iowa in Bennett v. City of Emmetsburg, 138 Iowa, 67, 115 N. W. 582, as follows: “A lot derives ‘special benefit’ from the construction of a sewer, within the meaning of a statute and ordinance providing that assessments shall be made in proportion to special benefits, when the sewer is so situated and constructed that connection can be had therewith, as the opportunity presented for individual use determines the question of special benefit.”
Dismissing these questions from further consideration as settled beyond controversy, there remains but the single inquiry: May a property-holder invoke the aid of a court of equity in the first instance to relieve him from an assessment for special improvements upon the ground that his property is so situated that it is impossible for it to obtain any benefit? The respondent city contends that, since the legislature has designated the city [342]*342council as a special tribunal before which objections to the creation of the proposed improvement district and to the proposed tax may be made and heard, the presentation of objections to that tribunal is a condition precedent to the right of the property-holder to go into a court of equity for relief, in the absence of fraud or lack of jurisdiction appearing upon the face of the council’s proceedings. The purpose of requiring notice to be given and a hearing had by the council upon any objections to the creation of a special improvement district or assessment made therefor, is to give an opportunity to any interested property-holder to be heard and to show, if he can, that his property will not derive any special benefit from the improvement, or that his property is made to bear an unjust proportion of the burden of taxation, but equally, also, is it to enable the city to correct any errors or mistakes, and, if any appear, to readjust itself before expense has been incurred or warrants have been issued. In the present instance, if the property of plaintiff and others similarly situated can be relieved from the tax, innocent third persons who have done the work and received the warrants must suffer, or the owners of the remaining property within the district must bear the burden of the entire assessment. It may be that a particular property-holder whose property will be benefited was willing to have the improvement made, provided all the property within the proposed boundaries of the district shared in the expense, but would not have been willing if one-half of the property was excluded and the remaining portion left to bear the entire burden.
While we have not been able to find any ease directly in point and the decision of the question presented is not without ,[2] difficulty, it seems to us that upon principle the doctrine of estoppel in pais is applicable here; that the failure of the plaintiff to appear before the council and object, not only deceived the city, but other property-holders as well, and led the city to incur expense which cannot otherwise be met; that now, after the expense has been incurred, the improvement made, and warrants issued, it would be altogether inequitable to permit the plaintiff to escape his proportion of the tax. He is estopped at [343]*343this late day to say that his property will not be benefited. (Annie Wright Seminary v. City of Tacoma, 23 Wash. 109, 62 Pac. 444.) This appears to be the general rule. (28 Cyc. 1171, 1174.) Of course, if the fact that plaintiff’s property cannot receive any benefit from the improvement appeared from the face of the city’s proceedings, the want of jurisdiction would be apparent, and a collateral attack upon the assessment could be maintained. But such is not the case here. To make it appear that plaintiff’s property cannot be benefited requires evidence dehors the record; evidence as to the location of plaintiff’s land with reference to the sewer and the contour of the country.
Since it does not appear affirmatively from the face of the city’s proceedings that plaintiff’s property cannot be benefited, the city acquired jurisdiction to make the improvement and levy a just proportion of the tax against plaintiff’s property in the first instance. (Rev. Codes, sec. 3370.) The plaintiff here seeks the aid of a court of equity, and, in order to give him standing, he must allege the facts necessary to entitle him to equitable relief. In our opinion, those facts, in addition to the ones pleaded, are that he appeared before the tribunal appointed by law to receive his protest, and that his protest was ignored. Failing to make this allegation, he is estopped upon the face of his complaint, and does not state facts entitling him to equitable relief.
The judgment is affirmed.
Affirmed.
Mr. Chiee Justice Brantly and Mr. Justice Smith concur.