Buddecke v. Ziegenhein

• Decision Date: 24 May 1894
• Parties: Buddecke et al. v. Ziegenhein et al., Appellants
• Court: Missouri Supreme Court

26 S.W. 696

122 Mo. 239

Buddecke et al. v. Ziegenhein et al., Appellants

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed.

W. C Marshall for appellants.

(1) This case falls within the decision in Michael v. St Louis 112 Mo. 612. (2) Notice by publication was sufficient. St. Louis v. Rankin, 96 Mo. 497. (3) The evidence is insufficient to support the judgment.

Leverett Bell and F. & Ed. L. Gottschalk for respondents.

(1) At the date of the ordinance and condemnation proceedings Utah street was a public street, and not the subject of the exercise of the right of eminent domain. Baker v. Vandenburg, 99 Mo. 378; Campbell v. Kansas City, 102 Mo. 326; Heitz v. St. Louis, 110 Mo. 618. (2) Injunction is the proper remedy. 2 R. S. 1889, p. 2119, sec. 2; p. 2120, sec. 5; p. 2121, sec. 10; Olean v. Steyner, 135 N.Y. 341; Michael v. St. Louis, 112 Mo. 610; Johnson v. Duer, 115 Mo. 366; St. Louis v. Ranken, 96 Mo. 497; 2 R. S., p. 2129, sec. 2.

OPINION

Burgess, J.

This is an action to enjoin the collection of certain special tax bills issued upon several different assessments for benefits to the property of plaintiffs, growing out of the opening of Utah street in the city of St. Louis.

The petition states that plaintiffs are the owners of property on South Ninth street, Utah street, Thirteenth street, Second Carondelet avenue and Lemp avenue; that on the twenty-eighth day of March, 1890, the city began proceedings against W. W. Withnell and Peter R. Kendrick, for the purpose of establishing and opening Utah street from Ninth street to Thirteenth street under ordinance number 14,921; that commissioners were appointed and made their report to the circuit court, and that court entered a final decree of condemnation of date February 4, 1891, by which said Kendrick and said Withnell were awarded damages for property taken for such purpose, and the plaintiffs herein were assessed benefits against the several lots owned by them respectively in the benefit district; that special tax bills were issued against the property and placed in the hands of defendant Ziegenhein, the collector of the city, for collection, which claims are liens on plaintiff's property; that Utah street, as described in ordinance number 14,921, was a public highway sixty feet wide, extending from Ninth street to Thirteenth street for many years prior to the passage of said ordinance, and that such condemnation proceedings and the tax bills issued thereunder are void, because the property sought to be condemned as a highway was really owned and possessed by the public for that purpose; that on July 3, 1855, William Wible, being the owner of the south one-half of Utah street between Ninth and Thirteenth streets, dedicated the same to public use as a public highway; that in 1869, John Withnell, who owned the north one-half of said street between Ninth and Thirteenth streets, filed a plat with the recorder of deeds of the county in which Utah street is exhibited as a public street sixty feet wide between Ninth and Thirteenth streets, and the north half thereof is shown as part of the street; that on February 10, 1869, the city of St. Louis, by ordinance number 6,746, authorized the city engineer to grade, curb, gutter, macadamize and pave the crosswalks and sidewalks on said Utah street from Eighth street to Second Carondelet avenue (now Thirteenth street), which was accordingly done, and said street has been used by the public continuously as a public street from 1869 to the present time; that the tax bills issued, as aforesaid, are a cloud on said property; that the plaintiffs were not parties to the condemnation proceedings and had no notice thereof, and that they have no remedy, except by this action, and they pray that said condemnation proceeding and said tax bills be declared void and that defendants be perpetually enjoined from collecting or enforcing said tax bills. The answer is a general denial.

Plaintiffs are the owners of property on South Ninth, Utah and Thirteenth streets, Second Carondelet and Lemp avenues, in the city of St. Louis. On March 28, 1890 the city began, in the circuit court of said city, proceedings against W. W. Withnell and Peter R. Kendrick to establish and open Utah street from Ninth to Thirteenth street under an ordinance theretofore passed by the city for that purpose. None of the plaintiffs were made parties to this proceeding. Commissioners were appointed and made their report to the circuit court and a final decree of condemnation was entered on February 4, 1891, by which Kendrick and Withnell were awarded...