Blackwell v. City of Lee's Summit

• Citation: 32 S.W.2d 63
• Decision Date: 14 October 1930
• Docket Number: No. 28911.,No. 28910.,28910.,28911.
• Parties: SALLIE M. BLACKWELL ET AL., Appellants, v. CITY OF LEE'S SUMMIT ET AL. JOHN L. LEIBWEBER ET AL., Appellants, v. CITY OF LEE'S SUMMIT ET AL.
• Court: Missouri Supreme Court

32 S.W.2d 63

SALLIE M. BLACKWELL ET AL., Appellants, v. CITY OF LEE'S SUMMIT ET AL. JOHN L. LEIBWEBER ET AL., Appellants, v. CITY OF LEE'S SUMMIT ET AL.

No. 28910.

No. 28911.

Supreme Court of Missouri, Division One.

October 14, 1930.

Appeal from Jackson Circuit Court. — Hon. W.O. Thomas, Special Judge.

AFFIRMED.

E.C. Hamilton and W.H. Carr for appellants.

(1) The course pursued by the defendants and upheld by the trial court is contrary to and directly in the face of Section 21, Article 2, Constitution of Missouri. Kirksville v. Ferguson, 262 Mo. 668; St. Louis v. Hill, 116 Mo. 536; Hickman v. Kansas City, 120 Mo. 120; Kirksville ex rel. v. Coleman, 103 Mo. App. 215; Davis v. Ry. Co., 119 Mo. 187. (2) The defendants failed to comply with Sections 8530, 8676, 8679, R.S. 1919, which compliance was necessary to confer jurisdiction. City of Tarkio v. Clark, 186 Mo. 298. (3) The proceedings looking toward the improvements should have been based on Section 8511, instead of Section 8510. Sec. 8510, R.S. 1919, and amendments thereof. Laws 1921, p. 516, Laws 1923, p. 265; Sec. 8511, R.S. 1919. (4) The remonstrances filed were sufficient to deprive the defendants of jurisdiction to proceed with the improvements. Hoover v. Newton, 193 S.W. 895; Knopfi v. Roofing & Paving Co., 92 Mo. App. 287; Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 801; Rhodes v. Springfield. 195 Mo. App. 182; Sedalia ex rel. v. Scott, 104 Mo. App. 608. (5) Resolution 3 and Ordinance 128 based thereon, are void, in that they contemplate that the paving of the intersection of Third Street and Douglas Street shall be paid for by the taxation of property in the next adjoining block east, to-wit, the unpaved block between Douglas and Green streets. Sec. 8504, R.S. 1919; State ex rel. Meek v. City of Chillicothe, 237 Mo. 495; Boonville Mercantile Co. v. Hogan, 205 Mo. App. 594.

E.S. Bennett and Clarence S. Palmer for respondent.

(1) Where the title of a landowner is not affected, it is not necessary that damages for a change of grade in constructing a city improvement shall be paid prior to the doing of the work. The land owner has a right of action against the city. Clemens v. Life Ins. Co., 184 Mo. 46; McGrew v. Paving Co., 247 Mo. 549; Lemon v. Drainage District, 310 Mo. 179. (2) Sec. 8530, R.S. 1919, applies only to condemnation cases affecting the title to the property. Secs. 8676, 8679, R.S. 1919, apply only where the city or landowner has asked that the damages be ascertained as to some specific property. The record shows no such application and the petitions in this case do not allege damages to any specific property. The validity of the contracts is not affected by a failure to ascertain possible damages prior to the construction of the work. The record shows no material change of grade. McGrew v. Paving Co., 247 Mo. 549; Hoffman v. Houck, 282 S.W. 448; McQuiddy v. Smith, 67 Mo. App. 205. (3) Sec. 8511, R.S. 1919, does not apply where a part of a street is to be paved. where such part and the parts of the street abutting at both ends of the proposed pavement are in substantially the same condition. That section is intended only to provide for filling a gap between two sections of a street already paved, or to repave an old and worn pavement which is met at both ends by a pavement of superior quality. The construction of the law asked by appellants would very largely take away the right of the landowners to protest, and would be unreasonable and oppressive. It should certainly not be held to have been the legislative intent to allow the board of aldermen after a street has been once paved, to select any part less than 1200 feet in length and by leaving a little pavement undisturbed at the ends, to force new pavement without regard to the wishes of the landowners. The courts will not give an unreasonable construction to statutes. 36 Cyc. 1110, 1111; Perry v. Strawbridge, 209 Mo. 621; Thompson v. State, 20 Ala. 62; Darlington Lumber Co. v. Railway Co., 216 Mo. 658; Hobein v. Murphy 20 Mo. 448; Walton v. Harris, 73 Mo. 441; Kane v. Railway Co., 112 Mo. 34. (4) There never was a majority protest on Douglas Street: 13 landowners, and only 6 ever signed the protest. On Third Street there were at least 26 landowners — probably 34 — 17 originally signed the protest, but 5 withdrew within the ten days, leaving but 12 signatures on the protest, which is a minority. Sedalia ex rel. v. Montgomery, 127 S.W. 50, 227 Mo. 1; Hinerman v. Williams, 205 Mo. App. 364; City Trust Co. v. Crockett, 309 Mo. 683; Kitchen v. City of Clinton, 8 S.W. (2d) 602. (5) As the cost of the work of paying the intersection of Third Street and Douglas Street has not yet been apportioned, the consideration of the method of apportionment is immaterial at the present time. The resolutions and the ordinances require the apportionment to be made according to law; the law requires the east half of the intersection to be apportioned against the land abutting on Third Street between Douglas Street and Green Street. Sec. 8504, R.S. 1919; City ex rel. v. McMichael, 221 Mo. App. 917.

ELLISON, C.

These two suits, instituted by abutting property owners, are to enjoin the city of Lee's Summit and the defendant contractor from constructing two certain paving improvements on Third Street and Douglas Street, respectively, in accordance with the resolutions, ordinances and contracts severally providing therefor. Lee's Summit is a city of the fourth class. The causes were consolidated for trial and heard by the Hon. W.O. Thomas, sitting as special judge. He found the issues against the plaintiffs and dismissed their bills. They have appealed.

The evidence is hard to understand. Many times witnesses were questioned concerning blue prints and profiles which were not introduced in evidence and preserved in the record. We shall attempt to outline the general facts and later when necessary will give the evidence in greater detail as it bears on each assignment of error.

Third Street runs east and west and intersects Douglas Street which runs north and south. The portion of these streets proposed to be improved, or most of it, lies in the business part of town. The proceedings on each street were inaugurated in March, 1927, by the adoption of separate paving resolutions, under Section 8510, Revised Statutes 1919, Laws 1921, p. 516, Laws 1923, p. 264. The plans for both projects call for vibrated concrete pavement 42 feet wide and 6 inches thick, and for bringing the streets to established grade, excavating for the necessary subgrade, curbing, guttering and draining, the curbing to extend six inches above the gutter, and the pavement to be crowned so that the center will be elevated about nine inches above the gutter. The curbing will come flush against the sidewalks or sidewalk line. In other words there will be no parkway space or grass plot between the sidewalks and the curbing, but the two are entirely separate.

The distance to be improved on Third Street is 862 feet running east to and including the whole area of the intersection with Douglas Street. On the latter street the paving is to start at the south edge of the intersection and run a block south. the two improvements thus forming an L. Third Street for some years has been macadamized for a greater distance in both directions than is to be covered by the new paving. In fact the latter is intended to replace the most worn part of the macadam — in the business section — and at both ends will join on to the old paving.

The grade established for the new concrete paving practically conforms to the surface of the present macadam, except that the latter is rough and uneven, with some scattered holes or depressions as much as a foot deep. Along the north side of Third Street, however, for a part of the distance improved, the sidewalk is three feet or more above the present macadam. On that side the new pavement is to be raised about nine inches. The sidewalk on the opposite, or south, side of the street at these points is very little if any higher than the curb will be. Neither sidewalk will be disturbed or changed by the paving; but there was some testimony that during heavy rains water from the street as it is now sometimes runs over this low sidewalk and on to the abutting property on the south side of the street, and the opinion was expressed that raising the level of the paving on the north side of the street probably will make this condition worse. But the further fact was elicited from appellant's witnesses on this point that the crowned center of the paving will be nine inches higher than the gutter on the north side of the street, which will confine the water on that side of the street to its own gutter unless the storm sewer should get stopped up.

Remonstrances were filed by abutting property owners against both projects. The appellants contend these were sufficient to deprive the mayor and board of aldermen of authority to contract for the improvements. The facts bearing on these questions will be stated later.

I. The first point made by the appellants in the trial court and here is that the paving proceedings and contract are invalid, or at least that the city and contractor have no authority to proceed thereunder, because no steps have Damages: Payment been taken to ascertain and compensate Before Construction. abutting property owners for damages caused by the change in the street grade, in accordance with Section 21, Article II, Constitution of Missouri. This section provides that "private property shall not be taken or damaged for public use without just compensation," which "shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law," and then continues (italics ours): "and until the same shall be paid to the owner, or into court for the owners, the property shall not be disturbed or the proprietary rights of the owner therein divested."

The...