Boatmen's Bank v. Semple Place Realty Company

• Decision Date: 19 June 1919
• Citation: 213 S.W. 900,202 Mo.App. 57
• Parties: BOATMEN'S BANK, a Corporation, Appellant, v. SEMPLE PLACE REALTY COMPANY, a Corporation, et al., Respondents
• Court: Missouri Court of Appeals

213 S.W. 900

202 Mo.App. 57

BOATMEN'S BANK, a Corporation, Appellant, v. SEMPLE PLACE REALTY COMPANY, a Corporation, et al., Respondents

Court of Appeals of Missouri, St. Louis

June 19, 1919

Rehearing Denied 202 Mo.App. 57 at 73.

Appeal from the Circuit Court of the City of St. Louis.--Hon William H. Kinsey, Judge.

AFFIRMED.

Judgment affirmed.

Lehmann & Lehmann, Paul V. Janis and Thos R. Reyburn for appellant Boatmen's Bank.

(1) The only question in this case is: "Are the tax bills void because issued against separate lots instead of an entire tract? All other defenses were ruled against the defendants who have not appealed, and they are out of the case. Carruthers v. Little River Drainage District, 271 Mo. 429, 196 S.W. 1115; Shull v. Mo. Pac. Ry. Co., 221 Mo. 140, 146. The defense sustained by the court below that the tax bills should have been issued against an entire tract is, under the evidence in this case, without merit. Forry v. Ridge, 56 Mo.App. 615, 625; Bambrick Bros. Construction Co. v. Semple Place Realty Co., 193 S.W. 543. (2) The defendants' property was assessed as lots for general taxes according to the subdivision of record since 1892 and defendants paid taxes on that basis, thus escaping taxation on 123,151 square feet of streets and alleys, which they now claim are private property. By paying taxes they treated the property as subdivided and cannot now resist payment of the special taxes. Bambrick Bros Constr. Co. v. Semple Place Realty Company, 193 S.W. 543. Parker, Washington Co. v. Bradley, 196 S.W. 111, 113; Construction Company v. Loevy, 64 Mo.App. 430. (3) The defendants cannot complain in a special assessment that they were undertaxed; nor can they complain of overassessment, unless they tender the amount due. In this case the assessment is $ 1428.94 less than it would be if the lots were treated as an entire tract. State ex rel. Stifel v. Flad, 26 Mo.App. 500; Overall v. Ruenzi, 67 Mo. 203; Diekhaus v. Olderheide, 22 Mo.App. 76, 79. (4) Even if it were correctly held that part of the sewer was constructed on private property, the court should have deducted the cost of that part and given plaintiff judgment for the balance. The court's power to reduce tax bills for error "embraces mistakes and errors of every kind susceptible of a correct determination." In this case there was no deduction to be made. The tax bill was $ 1428.94 less than it would have been on defendants' theory, even if part of the sewer was laid on private property and the cost thereof was deducted. Neil v. Ridge, 220 Mo. 233; Johnson v. Duer, 115 Mo. 366. The description of property in a special tax bill is sufficient if property is identified thereby. Construction Company v. Loevy, 64 Mo.App. 430; Adkins v. Quest, 79 Mo.App. 36; St. Louis v. Calhoun, 222 Mo. 54; St. Louis v. Koch, 169 Mo. 587. This court will not turn plaintiff out of court on a mere technicality. Sheahan v. Owens, 82 Mo. 465. (5) Apart from the division of the property into lots by the recorded plat, the payment by defendants and their testator of taxes assessed against the property as lots from 1897 to the date of trial authorized the city to treat it as lots under the established doctrine of "Usage by the owner." Construction Company v. Loevy, 64 Mo.App. 430; Bambrick Bros. Construction Company v. Semple Place Realty Company, 193 S.W. 543. (6) The streets are public streets. There has been a perfect and complete "common-law dedication" since foreclosure in 1897. Payment of taxes on the property for eighteen years, since 1897 to the date of trial, as lots, just as subdivided by the recorded plat, was a continuing offer of dedication to the city by defendants and their testator. The dedication became complete when the city accepted by passing the ordinance and building sewers on the street. Common law dedication may be effected by any act of the owner evincing an intention on his part to dedicate. No formality is necessary. Time is not an indispensable element. The dedication is immediately complete upon acceptance. The law creates out of the owner's act an "estoppel in pais" and precludes him from revoking the dedication. Drimmel v. Kansas City, 180 Mo.App. 339, 344; City of Hardin v. Ferguson, 196 S.W. 746; Naylor v. Harrisonville, 207 Mo. 341, 348, 349; Phillips v. Pryor, 190 S.W. 1027, 1029; McGrath v. Nevada, 188 Mo. 102, 107; Morgan v. Railroad, 96 U.S. 716; Heitz v. City of St. Louis, 110 Mo. 618; Bauman v. Boeckler, 119 Mo. 189; Rose v. City of St. Charles, 49 Mo. 509. (7) The act of dedication need not be based upon any consideration, nor is any particular form necessary. The intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts. Dedications have been established in every conceivable way by which the intent of the dedicator could by evidenced. 13 Cyc.. 452-453. Implied dedication arises by estoppel. 13 Cyc. 454. No formality is necessary to a valid acceptance. McGrath v. Nevada, 188 Mo. 107; City of Hardin v. Ferguson, 196 S.W. 746; Naylor v. Harrisonville, 207 Mo. 349.

C. R. Skinker for respondents.

(1) The judgment of the lower court was correct, because under the circumstances of this case attachment was the only method of proceeding permitted by law and was not employed. Former St Louis Charter, art. 6, section 25. In special taxation the mode of proceeding prescribed by statute must be followed, and any other is void and the charge founded thereon is void. Ruggles v. Collier, 43 Mo. 377; Verdin v. St. Louis, 131 Mo. 97; St. Louis v. Clemens, 43 Mo. 404; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Trenton v. Coyle, 107 Mo. 193; Nevada v. Eddy, 123 Mo. 558. Said section 25, amending former section 25, nullified the interpretation placed on the former section 25 in Eyermann v. Provenchere, 15 Mo.App. 256 at 271, and now requires a demand. Plummer v. United States, 224 U.S. 144; State v. Railroad, 242 Mo. 359; Bates v. St. Louis, 153 Mo. 22; Brewing Co. v. Canandaigua, 44 N.Y.S. 320. Where owners are non-residents and there is no "not found" return of notice of issuance of tax bill, attachment is the only remedy. Section 25, supra. If there be any doubt the proper construction of Section 25, it must be strictly construed in favor of the property owner, and all doubts resolved in his favor. St. Louis v. Realty Co., 259 Mo. 136; Albers v. St. Louis, 268 Mo. 360; In re Clark's Will, 270 Mo. 362; Gould v. Gould 245 U.S. 153. The court is without jurisdiction unless the method of procedure prescribed by statute is followed. Major v. Long, 31 Mo. 372; McCarty v. Railroad, 148 Cal. 217. (2) The judgment below was correct because the tax bills were illegally assessed, in that they divided defendants' land according to the Semple Place plat, which has been nullified by sale under the previous deed of trust. Granite Co. v. McManus, 244 Mo. 190; McShane v. Moberly, 79 Mo. 43. Of this situation the contractor was bound to take notice. Carroll v. St. Louis, 4 Mo.App. 191. (1) Defendants are not estopped to deny the inefficacy of that plat by paying general taxes assessed according to that plat. Paving Co. v. McManus, 244 Mo. 191. (2) The definition of "lot" in section 14 of article 6, of the charter applies to "lot" in section 2 of the same article. Powell v. Sherwood, 162 Mo. 614; Dixon v. Caudill, 143 Ky. 623; State v. Allison, 155 Mo. 330; United States v. Miller, 208 U.S. 38; Plummer v. United States, 224 U.S. 137; Railroad v. United States, 208 U.S. 452; Crossan v. City, 80 N. J. L. 511; Snyder v. Compton, 87 Texas, 379; Parshall v. State, 138 S.W. 765; Rains v. Stone, 123 P. 871; Re Kohler, 79 Cal. 313; since they are part of one system of law in pari materia. Sales v. Paving Co., 166 Mo. 671; State ex rel. v. Patterson, 207 Mo. 145; State ex rel. v. Gordon, 261 Mo. 646. Such division was without legal authority and the bills are therefore void. St. Louis Charter, section 14, article 6, supra; Cooley Con. Lim. (3 Ed.), p. 738; Upton v. People, 176 Ill. 632; People v. Clifford, 166 Ill. 165; People v. Railroad, 96 Ill. 372. The power of the city to assess is measured by the mode granted by said section 14, but the power actually exercised was not granted and is ultra vires and the whole proceeding is void. Ruggles v. Collier, 43 Mo. 353, 377; Verdin v. St. Louis, 131 Mo. 97; Zottman v. San Francisco, 20 Cal. 96 (per Field, J.); St. Louis v. Clemens, 43 Mo. 404; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Trenton v. Coyle, 107 Mo. 193; Nevada v. Eddy, 123 Mo. 558; Perkinson v. Hoolan, 182 Mo. 189; Whitworth v. Webb City, 204 Mo. 601; Albers v. St. Louis, 188 S.W. 83. The owner's right to have the tax assessed according to subdivisions of land to which he has assented, or not at all, is not merely technical but of constitutional dignity. Chicago v. Wells, 236 Ill. 130. The decision in Loevy v. Construction Co., 64 Mo.App. 430, has been nullified by the subsequent amendment of the charter changing the phraseology there construed to that now under consideration. Plummer v. United States, 224 U.S. 144; State v. Railroad, 242 Mo. 359; Bates v. St. Louis, 153 Mo. 22; Brewing Co. v. Canandaigua, 44 N.Y.S. 317. The decision in Bambrick Co. v. Semple Place Co., 193 S. W., 543, is authority for defendants, because it holds: (a) That in assessing for a sewer, the definition of "lot" in section 14 of article 6, of the then charter was applicable; (b) That where the lower court finds the question of usage of the land in order to define "parcel," such finding can not be reviewed by the appellate court; (c) And here the assessor testified that he made out the tax bills according to the plat alone, and this eleminates the question of usage. (d) Power to issue the...