Johnson v. Duer

Decision Date25 March 1893
Citation21 S.W. 800,115 Mo. 366
PartiesJohnson et al. v. Duer et al., Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court -- Hon. John W. Henry, Judge.

Reversed.

Gage Ladd & Small for appellants.

(1) The court erred in finding that any part of the sewer was upon private property. (2) The court erred in finding that the owners of lot 70 had no knowledge of the construction of the sewer and that neither of them consented to its construction. (3) The court erred in finding that a considerable portion of the property in the sewer district, owing to the topography of the land, can never make use of the sewer. (4) Even if the sewer were constructed for a certain distance on private property, plaintiffs must show affirmatively that it was without the permission or consent of the owners. Moore v Albany, 98 N.Y. 396; Matter of Ingraham, 64 N.Y. 310; Jackson v. Smith, 22 N.E. 431. (5) Even if the sewer runs through private property without the knowledge or consent of its owners, the tax bills are not for that reason invalid. The city may condemn a right of way after the completion of the improvement. Charter of City of Kansas art. 8 sec. 1; Session Acts, 1875, p. 244; Moore v. Albany, 98 N.Y. 396; Holmes v. Hyde Park, 121 Ill. 128; Hunerberg v. Hyde Park, 130 Ill. 156; Leman v. Lake View, 131 Ill. 391; Hyde Park v. Borden, 94 Ill. 33; Burhaus v. Norwood Park, 27 N.E. 1088; Maywood Co. v. Maywood, 29 N.E. 704; Cochran v. Park Ridge, 27 N.E. 940; Jackson v. Smith, 22 N.E. 431; Miller v. Anheuser, 2 Mo.App. 168. (6) The plaintiffs cannot be heard to make the complaint that the sewer runs on private property. It is not their property which has been invaded. Moore v. Albany, 98 N.Y. 396; Matter of Ingraham, 64 N.Y. 310; Holmes v. Hyde Park, 121 Ill. 128; Leman v. Lake View, 131 Ill. 391; Jackson v. Smith, 22 N.E. 432. (7) These tax bills were issued under the taxing power of the city and not under the power of eminent domain, and they are not invalid, because in making the improvement the city, as to certain third parties, unlawfully exercised the latter power. Keith v. Bingham, 100 Mo. 306; Hyde Park v. Borden, 94 Ill. 36; Holmes v. Hyde Park, 121 Ill. 129. (8) Plaintiffs' complaint, if established, can at most only operate in reduction pro tanto of the amount of the tax bill. State ex rel v. Flad, 26 Mo.App. 500; Neenan v. Smith, 60 Mo. 292; Bank v. Arnoldia, 63 Mo. 229; Farrar v. St. Louis, 80 Mo. 393; Miller v. Anheuser, 2 Mo.App. 168.

L. Traber, H. Merriweather, W. A. Alderson and T. H. McNeil for respondents.

(1) Because the contractor built a portion of the sewer on private property the tax bills are invalid; but this would be equally true had the ordinance provided for the location of the sewer on private ground. Olmstead v. Dennis, 77 N.Y. 378; In re Cheeseborough, 78 N.Y. 232; People v. Haines, 49 N.Y. 587; In re Rhinelander, 68 N.Y. 105; Bishop v. Tripp, 15 R. I. 466; Railroad v. City of Alleghany, 92 Pa. St. 100. (2) The portion of the sewer in question built on private property was in fact no sewer at all, and hence the sewer did not connect "with a public sewer or other district sewer or with the natural course of drainage" as required by the charter of Kansas City. City to use v. Swope, 79 Mo. 448; Bayha v. Taylor, 36 Mo.App. 427. (3) The appellants contend that it did not matter that a portion of the sewer was built on private property, because the city can in the future condemn such property for the purpose of sewerage. This is not correct. The sewer in question is a district sewer; and the power of Kansas City to condemn private property for sewerage purposes was restricted to public sewers. Charter of Kansas City, 1875, art. 9, sec. 4. (4) The evidence positively negatives the giving of any consent to place the sewer on the private property, and the trial court found that owners did not give such consent. McBeth v. Trabue, 59 Mo. 642; Reimer v. Stuber, 20 Pa. St. 458. (5) It is declared by the court in its findings that a considerable portion of the property in the sewer district, owing to the topography of the land, can never make use of the sewer. The boundaries of the sewer district should include only property which could be connected with the sewer; for by such connection only can property be benefited by the construction of the sewer. The benefit of an ordinance is the touchstone of its validity. Corrigan v. Gage, 68 Mo. 541; Thomas v. Gain, 35 Mich. 155; King v. Reed, 43 N. J. L. 186; Hanscon v. Omaha, 11 Neb. 37; Tide-Water Co. v. Coster, 18 Me. 527; State v. City of Elizabeth, 40 N. J. L. 274; Dyar v. Village of Farmington, 70 Me. 51; Halpin v. Campbell, 71 Mo. 493; Dillon on Municipal Corporations [4 Ed.] sec. 761, par. 7.

Macfarlane, J. Barclay, J., concurs in the result.

OPINION

Macfarlane, J.

This is a bill in equity brought by plaintiffs, twelve citizens and property owners of Kansas City, on behalf of themselves, and all other owners of real estate, situate in a certain sewer district, number 84, in said city, who may be interested.

The object of the suit is to declare void a certain ordinance of the city of Kansas, establishing a sewer district and providing for the construction of a sewer therein, and certain tax bills, issued by virtue thereof, and that the clouds on the real estate of plaintiffs, created thereby, may be removed.

The defendants are Alexander Duer, who is, as charged in the petition, the contractor by whom the sewer was built and to whom were issued certain special tax bills in payment therefor, and the International Loan and Trust Company, to whom said bills had been assigned as collateral security.

The petition alleged that the tax bills were void for the following reasons:

(1) The contract for the construction of the sewer was not let to the lowest and best bidder as was required by the charter for all such work.

(2) That the sewer was for the distance of one hundred and ninety-five feet built upon and through private property, and continues so without the knowledge or consent of the owners thereof; and that such part of the sewer is the part through which the whole sewer district is drained, and there is no other outlet provided, nor any connection with a public or other district sewer, or with the natural course of drainage as required by the charter.

(3) That the sewer was not constructed along the center of Dora avenue as required by the ordinance establishing it, but for a distance of one hundred and ninety-three feet runs diagonally through said avenue.

(4) That the topography of the district is such that a large portion of the land and lots therein cannot be drained by said sewer, and owners of such property cannot make use of or have any benefit from said sewer and its laterals; and that said sewer has not all the necessary laterals, inlets and other appurtenances required.

The answers of defendants were in substance general denials.

The charter of the city of Kansas, then in force, (acts 1875, p. 200) gave the council power to construct three classes of sewers, public, district and private. Public sewers should be constructed by taxes levied upon the property of the whole city. District sewers should be established within certain districts, to be described by ordinance, and should connect with a public sewer or other district sewer, or with the natural course of drainage. The expense of construction of district sewers should be charged as a special tax against the lots situate in the district, exclusive of improvements, in proportion to the area of the whole, exclusive of public highways. The certified tax bills when assessed should be delivered to the contractor for the work, who is given power to collect the amounts thereof, in the name of the city, by the ordinary processes of law. The tax bills so certified should constitute a lien upon the land against which it was charged.

Section 4, article 9, of the charter gave the city power to condemn private property for the construction of public sewers as other property is condemned for public use. Section 1 of article 8 gives the council power to establish, erect and keep in repair bridges, culverts and sewers and to regulate the use of the same. Article 7 provides for condemning private property for a "route for sewers" or other public improvement whenever the council shall by ordinance provide for establishing, opening, widening, extending or altering the same. The charter further requires that all improvements of whatever kind shall be let to the lowest and best bidder.

The ordinances provide the details for carrying out the provisions of the charter. They require that the bids shall be opened and the lowest and best bid shall be accepted, provided, that the city engineer, or other person acting, "may reject any and all bids if deemed too high, or the parties bidding are deemed irresponsible." And immediately after the acceptance of any bid the city engineer shall require the bidder to enter into a written contract with the city.

The work was let to one Caddegan, who was the lowest bidder, who failed to enter into the contract and give the bond required, and after a delay of about twenty days the contract was let to defendant Duer on his bid, which was the next lowest, but which was about $ 1,100 more than that of Caddegan.

The ordinance establishing sewer district 84 and providing for the construction of the sewer in question required it to connect with the district sewer of district number 82 in Alton avenue at the north line of district number 84 and run thence along the center of Dora avenue to a given point. The contract required defendant Duer to perform the work in conformity with the plans and specifications on file in the office of the...

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