Barton v. Kansas City

• Decision Date: 30 May 1904
• Citation: 83 S.W. 1093,110 Mo. App. 31
• Parties: BARTON et al. v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

83 S.W. 1093

110 Mo. App. 31

BARTON et al. v. KANSAS CITY et al.

Kansas City Court of Appeals. Missouri.

May 30, 1904.

MUNICIPAL IMPROVEMENTS — SEWER CONSTRUCTION — REGULARITY OF PROCEEDINGS — VALIDITY OF SPECIAL ASSESSMENT.

1. Where an ordinance directed the construction of a sewer "for sanitary and drainage purposes," and the sewer constructed was for drainage only, without any house or other connections, it was not such a sewer as was authorized by the ordinance, and the assessments therefor will be canceled, at the suit of the property owners, as a cloud on title.

2. Where the assessment for sewer construction is void because the contract for the construction of the sewer did not provide for connections or inlets to the sewer as provided by the ordinance authorizing it, the assessment is not rendered valid by the fact that the park board afterward constructed catch-basins and connections with the sewer for the purpose of carrying off surface water.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Bill in equity by Kimber L. Barton and others against the city of Kansas City and others. From a decree for plaintiffs, defendants appeal. Affirmed.

Clarence S. Palmer, for appellants. Karnes, New & Krauthoff, for respondents.

ELLISON, J.

This is a proceeding by bill in equity whereby plaintiffs seek to have declared void and canceled certain tax bills which are apparent liens on their property, and are a cloud on their title. The trial court entered a decree for the plaintiffs.

The city council of Kansas City, Mo., by ordinance, established and ordered constructed a district sewer in Sewer District No. 11, Sewer Division No. 5. The ordinance duly describes the proposed sewer as beginning at the intersection of Troost avenue and Armour Boulevard, at a point on the center line of said avenue, and 20 feet north of the south line of said boulevard. Its course is then described on other streets over a total distance (not including one lateral) of near one-half mile, terminating in "an outlet in a creek running north and south between" two streets. For a part of the distance its diameter was to be 3 feet and 2 inches, and for the remaining distance it was to be 4 feet. The sewer was ordered for sanitary and drainage purposes, the words of that portion of the ordinance being: "Said sewers shall have all necessary manholes, with their necessary connections, and shall be paid for in special tax bills against and upon the lands in said sewer district, as provided by law, which work the common council * * * deems necessary to have done for sanitary and drainage purposes." Neither the ordinance nor the contract for construction provided for any entrance or ingress into the sewer, except the ordinance provides for "manholes," which are modes of ingress from the top of the sewer in the middle of the street. The words of the ordinance are that "Manholes for the inspection, cleaning and ventilation of said sewers, shall be constructed as parts of, or appurtenances to said sewer at the following points." The ordinance then proceeds to provide that there shall be five manholes on the main sewer, and two on the lateral, at designated points. There was no provision made in the ordinance for connecting the sewer with houses, so as to receive the sewage ordinarily originating in buildings, and it is conceded that it was not intended for that purpose. Nor was there any provision for connecting the sewer with inlets and catch-basins on the curb line of the streets, so that it might receive surface water, and thereby perform the function of drainage. The ordinance provided for "necessary connections with manholes," but the contract did not, and none were constructed. The contractor completed the sewer within the time required. When it was finished and he became entitled to the tax bills, if the proceedings were valid, the sewer had no connection with anything at its beginning, and, as stated, its end was in a creek or ravine. Vital importance is, however, attached by defendants to the following considerations. It appears that, prior to the ordaining of the ordinance for the sewer, the city council had authorized, by ordinance, the board of public park commissioners to construct guttering and curbing along the sides of Armour Boulevard of cement and artificial stone, which work, the ordinance provided, should be paid for by the issuance of tax bills against the lands of property owners. The park board then proceeded to do the curbing and guttering, marking and designating at certain points on such curb places for the entrance and sinking of catch-basins. It appears, further, that after the sewer was completed the park board, of its own motion (that is, without an ordinance of the city council), had catch-basins constructed, and connection run from them out into the street, and there connected with the sewer. These basins and connections were paid for out of the general park board funds, and, as just stated, without their construction having been ordered by the city council.

Several points have been urged against the validity of the tax bills, under the foregoing...