City of Kirksville v. Ferguson

• Citation: 172 S.W. 4
• Decision Date: 19 December 1914
• Docket Number: No. 16938.,16938.
• Parties: CITY OF KIRKSVILLE v. FERGUSON.
• Court: United States State Supreme Court of Missouri

172 S.W. 4

CITY OF KIRKSVILLE v. FERGUSON.

No. 16938.

Supreme Court of Missouri, Division No. 1.

December 19, 1914.

1. MUNICIPAL CORPORATIONS (§ 413)—ASSESSMENT OF DAMAGES AND BENEFITS—PROCEEDINGS—STATUTORY PROVISIONS.

Rev. St. 1909, §§ 9258-9275, authorizing municipalities to improve streets and sidewalks and institute proceedings to ascertain damages as authorized by the statutes relating to the condemnation of private property for public use, and providing that it shall not be lawful to change any grade without making compensation with reference to benefits and damages, etc., authorize a suit by a city for assessment of damages and benefits on account of a change of grade of a sidewalk and to construct a sidewalk.

2. MUNICIPAL CORPORATIONS (§ 304) — CHANGE OF GRADE FOR SIDEWALKS—ORDINANCES.

An ordinance which orders the construction of a sidewalk, which when finished shall conform to the grade stakes of the city engineer then in place, must be read in connection with the ordinance authorizing the assessment of damages and benefits enacted at the same time and with a common design to construct the sidewalk, and a suit by the city to assess damages and benefits accruing from a change of grade of the sidewalk cannot be dismissed on the ground that the grade or change of grade is indefinite and uncertain, though it might have been better if the ordinance authorizing the assessment of damages and benefits had also established the grade of the sidewalk.

3. MUNICIPAL CORPORATIONS (§ 314) — GRADE OF STREETS—ESTABLISHMENT—MONUMENTS.

The permanency of monuments of the grade of streets and sidewalks is for the determination of the municipality, and the mere fact that stakes fixed the grade does not affect the validity of the proceedings establishing the grade and assessing damages and benefits accruing therefrom.

4. APPEAL AND ERROR (§ 169) — QUESTIONS REVIEWABLE—QUESTIONS NOT RAISED AND DETERMINED IN TRIAL COURT.

The Supreme Court will not decide questions not raised and passed on in the court below.

Appeal from Circuit Court, Adair County; Nat. M. Shelton, Judge.

Action by the City of Kirksville against Annie Ferguson. From a judgment against petitioner, it appeals. Reversed and remanded, with directions.

This suit was begun in the circuit court of Adair county, by the city of Kirksville, a city of the third class, against the defendants, to have the damages and benefits assessed that might accrue to certain property situate therein, on account of the proposed change of the grade of the sidewalk in front thereof. After hearing the case in full, the circuit court, on motion of the defendants, dismissed the suit, and the city appealed the cause to the Kansas City Court of Appeals. On motion that court, because of certain constitutional questions involved, transferred the cause to this court for decision. The petition, omitting formal parts, was as follows:

"To the Honorable Nat. M. Shelton, Judge of Said Court, in Vacation.

"The petitioner herein, the city of Kirksville, respectfully shows that on the 3d day of July, 1911, the mayor and council of said city did duly pass ordinance numbered 1457, providing for the improvement of a part of the sidewalk portion of Jefferson street a public highway of said city by grading the sidewalk portion and constructing a concrete sidewalk along the south side of said street on the north front of a tract of land described as all of lot 8 in block 26, original town, now city, of Kirksville, Mo., except a strip of land 25 feet in width off of the east end of said lot 8. And that thereafter on the same date the said mayor and council did duly pass an ordinance numbered 1458, wherein the limits in which private property should be assessed to pay damages by reason of said improvement was defined, a certified copy of both of which said ordinances are filed herewith and hereto annexed. The names of the owners of the several lots, tracts, or parcels of land included in said district are as follows, to wit: John H. Janisch owns lots 1 and 2 in block 12 Railroad addition to said city, and Annie Ferguson owns a tract of land described as lot 8 in block 26, original town, now city, of Kirksville, Mo., except a strip of land 25 feet in width off of the east end of said lot 8, and L. F. Poehlman owns all of lot 6, and a strip of land 25 feet in width off of the east end of lot 8 in said block 26. Wherefore your petitioner prays that three disinterested commissioners freeholders of Adair county be appointed to ascertain the compensation to be paid for...