7-12-4167. Provision for grading street by owner of abutting property. (1) It shall be lawful for the owner or owners of the lots or land fronting upon any street the width and grade of which shall have been established by the city council or commission to perform, at his or their own expense (after obtaining permission from the council or commission to do so but before said council or commission has passed its resolution of intention to order grading exclusive of this), any grading upon said street, to its full width or to the centerline thereof and to its grade, as then established, and thereupon to procure, at his or their own expense, a certificate from the city engineer setting forth the number of cubic yards of cutting and filling made by him or them in such grading and proportions performed by each owner and that the same is done to establish width and grade of said street or to the centerline thereof and thereafter to file said certificate with the city engineer. The engineer shall record the certificate in a properly indexed book kept for that purpose in his office.
     (2) (a) Thereafter, whenever the council or commission orders the grading of said street or any portion thereof on which any grading, certified as provided in subsection (1), has been done, the bids and contracts must express the price by the cubic yard for cutting and filling in grading. The owner or owners and his or their successors in interest shall be entitled to credit on the assessment upon his or their lots and lands fronting on said street for the grading thereof to the amount of the cubic yards of cutting and filling set forth in his or their certificate, at the prices named in the contract for said cutting and filling or, if the grade meanwhile has been duly altered, only for so much of said certified work as would be required for grading to the altered grade. Such owner or owners shall not be entitled to such credit as may be in excess of the assessments for grading upon the lots and lands owned by him or them and proportionately assessed for the whole of said grading.
     (b) The city clerk shall include in the assessment, for the whole of said grading upon the same grade, the number of cubic yards of cutting and filling set forth in any and all certificates so recorded in his office, or for the whole of said grading to the duly altered grade, so much of said certified work as would be required for grading thereto and shall enter corresponding credits, deducting the same as payments upon the amounts assessed against the lots and land owned, respectively, by said certified owners and their successors in interest; provided, however, that he shall not so include any grading quantities or credit any sums in excess of the proportionate assessments for the whole of the grading which are made upon any lots and lands fronting upon said street and belonging to any such certified owners or their successors in interest.

     History: En. Sec. 14, Ch. 89, L. 1913; re-en. Sec. 5238, R.C.M. 1921; amd. Sec. 1, Ch. 163, L. 1925; re-en. Sec. 5238, R.C.M. 1935; amd. Sec. 1, Ch. 39, L. 1955; amd. Sec. 1, Ch. 330, L. 1971; amd. Sec. 1, Ch. 85, L. 1973; R.C.M. 1947, 11-2214(4), (5).