Kennard v. Eyermann

• Decision Date: 06 January 1916
• Docket Number: No. 17545.,17545.
• Citation: 182 S.W. 737,267 Mo. 1
• Parties: KENNARD et al. v. EYERMANN et al.
• Court: Missouri Supreme Court

182 S.W. 737

267 Mo. 1

KENNARD et al. v. EYERMANN et al.

No. 17545.

Supreme Court of Missouri. Division No. 2.

January 6, 1916.

Rehearing Denied February 15, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Proceeding by Samuel M. Kennard and others against Gottlieb Eyermann, Jr., and another, to enjoin the collection of special tax bills issued by the city of St. Louis. Judgment for defendants, and plaintiffs appeal. Affirmed.

Barclay, Orthwein & Wallace and Smith & Pearcy, all of St. Louis, for appellants. Schnurmacher & Rassieur, of St. Louis, for respondents.

WALKER, J.

This is a proceeding to enjoin the collection of special tax bills issued by the city of St. Louis to the defendant G. Eyermann & Bro., contractors, who reconstructed Waterman avenue between Kings-highway and Union boulevard, public streets of said city.

The charter of the city of St. Louis provides how the benefit district which shall bear a portion of the cost of such improvements shall be fixed; section 14, article 6, of the charter, in relation thereto, being as follows:

"The districts herein referred to shall be established as follows: A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district," etc.

Waterman avenue, on which the work was done, runs from east to west and is parallel with and quite a distance north of Forest Park.

Plaintiffs, who were the owners of property fronting on Portland place (a private "place" within the benefit district), attack the validity of the tax bills and claim that the board of public improvements, in determining the amount of tax required to be paid by the respective lots in the benefit district, failed to include the entire area legally subject to the tax, and therefore the bills against their lots are for excessive amounts.

On the north the board drew the line midway between Waterman avenue and the next street north. This plaintiffs concede. On the south the board drew the line midway between Waterman avenue and Lindell avenue, claimed by the board to be the next street south. But plaintiffs claim that Lindell avenue is not a street within the meaning of the charter, and that the board should have drawn the line midway between Waterman avenue and Berthold avenue, or possibly Clayton avenue, a street running through the park, and that the district should thus have included a large part of Forest Park. Plaintiffs concede that the contract was properly let and the bills were otherwise properly issued. The only ground urged by them is as to the validity of the board's action in fixing the taxing district.

The contract for the work was let and the special tax bills were issued in 1910, and the status of Lindell avenue as of that date must be determined. Its history is as follows: William D. Griswold was the owner of a tract of 80 acres lying immediately north of Forest Park, bounded on the east by Kingshighway, and on the west of Union avenue. In 1876 Griswold conveyed to the county of St. Louis a strip 50 feet wide off the south side of said 80 acres, adjoining the north line of Forest Park and extending from Kingshighway to the St. Louis, Kansas City & Northern railroad. This strip now is Lindell avenue, the street in question.

The deed to the county was for the following uses and purposes:

"To have and to hold the same to said St. Louis county for the uses and purposes following, viz.: That same shall be incorporated into and be held, improved, used, and controlled as a part of Forest Park, and shall be subject to the jurisdiction and government of the commissioners of Forest Park in same manner and to same extent as pertains to the general territory and property of same. That said board of Commissioners shall cause to be constructed a carriage avenue over the premises described, embracing part of the present north line of the said park adjoining the land hereby conveyed; such carriageway to be not less than 50 feet in width extending from Kingshighway to the line of said railroad, the same for the width of 15 feet to be completed after the best manner of the other carriage avenues of said park, and for the balance of width to be graded in conformity with the said 15 feet of width so as to form in connection with same a common avenue, that they shall grade a footwalk along the north side of said avenue corresponding with the level or elevation of same and fronting the said tract of 80 acres, and during the current winter or coming spring plant shade trees along the curbing or border of said footwalk of such kind and in such distances as to the said commissioners may seem expedient and in harmony with the general improvement of the park. * * * And also said Griswold and persons holding under him, owners or occupiers of the land and lots fronting upon said avenue and footwalk, shall have outlet and inlet from and into their premises and right of temporary stoppage in front thereof, for all such carriages and teams as by the regulations and rules governing the park may be allowed to run in the same, and that the streets which may be laid out upon the said 80 acres may enter and be connected with said avenue, and that said streets shall be accessible through the same for all such carriages and teams."

Upon the separation of the city and county, the strip passed to the city.

Griswold owned the tract until May, 1887, when he conveyed it to the Forest Park Improvement Association; the deed specifies the metes and bounds of the entire 80-acre tract. In May, 1888, the grantee platted the tract and laid it out in blocks and lots. The association also dedicated to the city, for the same uses, a short strip 50 feet wide, adjoining the railroad tracks, and extending the strip dedicated by Griswold through to Union boulevard, thus making a continuous strip from Kingshighway to Union boulevard. This 50-foot strip from Kingshighway to Union boulevard is designated on the city plat as the "Park Road." The part dedicated parallels the railroad tracks and runs diagonally into Union avenue. Subsequently the city condemned as a street a strip 50 feet wide, extending the Griswold strip on a straight...