City ex rel. Lancaster v. Armstrong

• Decision Date: 31 March 1874
• Citation: 56 Mo. 298
• Parties: CITY to use of RICHARD D. LANCASTER, Assignee of GEORGE PRENDERGAST, Respondent, v. DAVID H. ARMSTRONG, Appellant.
• Court: Missouri Supreme Court

56 Mo. 298

CITY to use of RICHARD D. LANCASTER, Assignee of GEORGE PRENDERGAST, Respondent,

v.DAVID H. ARMSTRONG, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

A. Reese, for Appellant.

I. The second ordinance passed in consequence of the agreement with defendant for the right of way, without which the city could not have taken the sewer through his ground. The city availed itself of the agreement, and profited thereby.

II. The city had no right to put the sewer on Armstrong's ground without his consent. It was private property; there was no alley through it, and the city was in no condition to condemn it, not having provided by ordinance for opening an alley through it.

III. The city has no power to condemn private property for district sewers, but may for public sewers. (See Rev. Ord. 1871, pp. 100, 101, §§ 10, 11, 12, 13, 14, 15, 16, as to division of sewers into classes, Public, District and Private.)

IV. The city accepted the benefits of the concession, took possession, built the sewer through defendant's ground, and has been enjoying its use ever since. The city is estopped from denying the authority of its agents to make the agreement, having accepted the benefits. (1 Pars. Cont., [5th Amer'n Ed.] p. 44, and notes.) If one accepts the benefit of a service, in law, it is on the same footing as a service at request, for which a promise is made. ( Id. p. 392 and notes.)

Bakewell & Farish, for Respondent.

I. The city being a mere nominal plaintiff, (not liable even for costs in the event of an adverse judgment) and having no interest in the bill, was not competent to make any such contract as alleged.

II. No attempt was ever made to make such a contract with the city; but only with some gentlemen, who were only members of a certain sewer committe, and had no more right to bind the city than this court has.

WAGNER, Judge, delivered the opinion of the court.

This was an action on a special tax bill issued by the city engineer, under a sewer contract, to one George Prendergast, and by him assigned to the plaintiff.

The answer set up the invalidity of the ordinances under which this work was done, and as a further and special defense stated that the sewer was built across the defendant's land; that defendant objected to its being constructed there, because he had no use for it, and was unwilling to pay for it, and it was finally agreed that if he would give the city the right of way through his land to construct the sewer, he should not be called upon to make payment for three years from that date; that upon this agreement and express understanding, he did in writing convey to said city the right of way, and that the time for payment had not expired when the suit was brought.

The evidence fully sustained this special defense set up in the answer. It showed that the contract was let out under the original ordinance establishing the sewer, and that in a short...