Boonville Mercantile Co. v. Hogan

• Decision Date: 29 November 1920
• Docket Number: No. 13763.,13763.
• Citation: 226 S.W. 620,205 Mo. App. 594
• Parties: BOONVILLE MERCANTILE CO. v. HOGAN.
• Court: Missouri Court of Appeals

226 S.W. 620

205 Mo. App. 594

BOONVILLE MERCANTILE CO. v. HOGAN.

No. 13763.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Cooper County; John G. Slate, Judge.

Suit by the Boonville Mercantile Company against Thomas Hogan. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W. G. Pendleton, of Boonville, for appellant.

John Cosgrove and D. W. Cosgrove, both of Boonville, for respondent.

ELLISON, P. J.

This is a proceeding in equity to cancel a certain tax bill as being an apparent lien on defendant's property in the city of Boonville, thereby putting a cloud on plaintiff's title. Defendant demurred to the petition on the ground that it failed to state a cause of action. The trial court sustained the demurrer, and plaintiff, standing on his petition, appealed.

Boonville is a city of the third class, and it appears from the pleading that the city council duly provided for the paving of Fifth street from the north line of High street, three blocks south, to the south line of Chestnut street. The work was let to a contractor and performed by him. An apportionment of the cost was made, and plaintiff's property assessed at $135, for which a tax bill was issued to the contractor and by him assigned to defendant.

Fifth street extends on south of where the paving ended, and plaintiff's property begins where the paving ends, at the termination of the paving, and thus abuts on the unpaved part of Fifth street. The effect of this is that the paving for which plaintiff will be asked to pay only comes to the corner of his property. Property cornering on a street improvement does not abut it. A corner is merely an indefinite point, without definable area.

The statute upon which the improvement must rest is section 9254, H. S. 1909, as amended by Laws 1911, p. 337. That part of the statute applicable reads that—

"The cost of paving, guttering and otherwise improving any alley and the road way part of any street, that is the part between the curb lines, including street intersections shall be charged against the lots and tracts of land fronting or abutting on the street or alley so improved along the distances improved, in proportion to the number of fronting or abutting feet."

That statute is not authority to take any property for paving street and intersections that does not abut on such street; and—

"where the statute limits the property which may be subjected to assessment to that which is...