City of Higginsville ex rel. and to Use of Kasco, Inc. v. Alton R. Co.

• Citation: 171 S.W.2d 795,237 Mo.App. 1204
• Parties: The City of Higginsville, Missouri, ex rel., Kasco, Incorporated, a Corporation, Respondent, v. The Alton Railroad Company, a Corporation, et al., Appellants
• Decision Date: 03 May 1943
• Court: Court of Appeals of Kansas

171 S.W.2d 795

237 Mo.App. 1204

The City of Higginsville, Missouri, ex rel., Kasco, Incorporated, a Corporation, Respondent, v. The Alton Railroad Company, a Corporation, et al., Appellants

Court of Appeals of Missouri, Kansas City

May 3, 1943

[Copyrighted Material Omitted]

Appeal from Circuit Court of LaFayette County; Hon. Robert D Johnson, Judge.

Reversed and remanded.

Henry C. Chiles and Charles M. Miller for appellant.

(1) The petition and new tax bills having alleged that the owner of the two tracts of land involved were owned by the Alton Railroad Company, could not thereafter at the trial, dispose or contradict the allegations of the petition and are bound thereby. Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291, 14 S.W. 110; Davis v. Bond, 75 Mo.App. 32; Kelley v. Briggs (Mo. App.), 290 S.W. 105; Farm & Home Sav. & Loan v. Stubbs (Mo. App.), 98 S.W.2d 320. It is further the law that a party to a suit upon trial, cannot contradict even, an unnecessary averment in his pleading. Bruce v. Simms, 34 Mo. 246; Otrich v. Railroad, 154 Mo.App. 420, 134 S.W. 665, 144 S.W. 1199. (2) The petition and new tax bills having alleged that the owner of the two tracts of land sought to be taxed, was the Alton Railroad Company, rendered it improper and unlawful for any general money judgment to have been rendered against the defendant, Kansas City, St. Louis & Chicago Railroad Company. Stradler v. Meyer, 59 Mo. 400; Associated Holding Co. v. Kelley, 230 Mo.App. 267, 90 S.W.2d 423; Berry v. Richmond, 220 Mo.App. 559, 285 S.W. 130; Fannell v. Rammelkamp, 64 Mo.App. 425. (3) The original tax bills, having been issued on December 13, 1929, having recited therein that the Chicago & Alton Railroad Company was the owner of the tracts to be assessed, Higginsville was without authority nearly five years later, to issue the alleged new tax bills. Galbreath v. Newton, 45 Mo.App. 312, 318, 319. (4) The parts of the railroad right-of-way paved were outside the limits of Boggs and Blackstone streets, and there was no legal authorization for the issuance of the new special tax bills against the tracts of land in question. Roth v. Hoffman, 234 Mo.App. 114, 111 S.W.2d 988. (5) Adverse user as aquiescence by prescription, if valid at all, is at most limited to the traveled and used portions of the roadway and did not constitute a street forty feet wide. Hall v. Flagg (Mo. App.), 296 S.W. 164, 165. (6) The application of the "front foot" rule to the tracts in question, shows not only the injustice of the purported proceedings upon which the two new tax bills are predicated, but makes illegal the tax bills. There was no benefit shown to the alleged tracts as a railroad right-of-way. The tax bills were also void for the reason that a railroad right-of-way could not be assessed as was sought to be done. 14 C. J., sec. 2289, p. 529. (7) Secs. 5214, 5215 aud 5216, R. S. Mo. 1939, all pertained and provided for the construction and maintenance of a crossing by a railroad where it crosses a city or town street, including the grading and paving thereof, are exclusive, and Sec. 7210, R. S. Mo. 1939, under which the tax bills were attempted to be issued, is not applicable. (8) It is the law that tax bills must give an accurate and correct description of the land sought to be assessed with a special tax. University City v. Amos (Mo. App.), 156 S.W.2d 65. The description as made in these tax bills, without distance in metes or feet and location, is too inadequate in description and is not definite and certain, to constitute an accurate and correct description. Wyatt v. Wabash R. R., 114 Mo. 1, 26 S.W. 26, 29, which mentions a railroad right-of-way as not being fixed or definite. See also, Flentge v. Burroughs (Mo. App.), 74 S.W. 610. (9) Sec. 7210, R. S. Mo. 1929, is unconstitutional and void, because the same amounts to a depriving of this defendant of its property without due process of law or the equal protection of the law, and without adequate compensation or any compensation at all, all contrary to Secs. 21 and 30, Art. II of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States. The unconstitutionality of this statute was urged in the trial court by instruction requested, and was in defendant's motion for new trial. Stadler v. Meyer, 59 Mo. 400. (10) It is well settled law that alleged issuable facts cannot be submitted to a jury unless predicated upon evidence in the case and such issues as submitted to the jury must carry with them correct declaration of the law and be germane and responsive to the issues as made by the pleadings, all of which plaintiff's given Instruction No. 1, violated. There was no evidence to support such alleged issues. (11) Plaintiff's given Instruction No. 2, in stating to the jury that the new tax bills were rightfully issued, was contrary to the law, and the instruction was further prejudicial to this defendant, in that it tended to lead the jury to believe that the tax bills having been lawfully issued, should recover against this defendant. (12) Plaintiff's given Instruction No. 3 instructing the jury that plaintiff had a right to recover interest at six percent from January 13, 1929, when the new tax bills had not been issued until on or after November 20, 1933, nearly five years later, was erroneous. Before interest can be charged, a debt must exist and there be an opportunity to pay the same. Interest cannot be exacted before any duty or obligation exists or arises to pay. 33 C. J. 189; Sec. 31, p. 239; Secs. 139, 140, 141. (13) Plaintiff's Instruction No. 4 was erroneous. The instruction did not correctly declare the law and was prejudicial to this defendant, in assuming that the right-of-way was owned by the Kansas City, St. Louis & Chicago Railroad Company, of which there was no evidence and tended to improperly and prejudicially lead the jury to believe and find that the tracts assessed belonged to the Kansas City, St. Louis & Chicago Railroad Co. (14) Defendant's refused Instruction No. 13 correctly states the law for the reasons heretofore set forth in the assignment of errors and the points and authorities. (15) Defendant's refused Instruction No. 14 the effect that Sec. 5215, R. S. Mo. 1939, was exclusive. Secs. 5214, 5215 and 5216, R. S. Mo. 1939, are exclusive and Sec. 7210 is not applicable to a pavement on a railroad right-of-way at a public crossing, in a city or town. A reading of the statutes will disclose why such should be true. (16) The verdict and judgment are excessive as they include interest from January 13, 1929, nearly five years before the new tax bills in question were actually issued. The collection of interest before a legal obligation to pay exists in a matter of this kind, is contrary to law. 33 C. J. 189; Sec. 31, p. 239; Secs. 139, 140, 141.

Cornelius Roach, Daniel L. Brenner and Ike Skelton for respondent.

(1, 2) Secs. 7207, 7210, R. S. Mo. 1939; Farrell v. Rammelkamp, 64 Mo.App. 425; St. Joseph v. Forsee, 110 Mo.App. 127; City of St. Louis v. DeNoue, 44 Mo. 136; Stadler v. Roth, 59 Mo. 400. (3) City of Caruthersville v. Huffman, 171 S.W. 323; Benton v. St. Louis, 217 Mo. 667; McGinnis v. St. Louis, 157 Mo. 191; Sec. 7367, R. S. Mo. 1939. (4) Sec. 7367, R. S. Mo. 1939; Heman v. Wabash R. R. Co., 206 Mo. 172; Gilsonite v. R. R. Co., 240 Mo. 650, 144 S.W. 1086. (5) Secs. 5214, 5215 and 5216, R. S. Mo. 1939. (6) Galbreath v. Newton, 45 Mo.App. 312; State ex rel. Paving Co. of St. Louis, 183 Mo. 230; Savings Bank v. Ridge, 183 Mo. 506. (7) Heman v. Wabash R. R. Co., 206 Mo. 172; Gilsonite v. R. R. Co., 240 Mo. 650, 144 S.W. 1086. (8, 9) Galbreath v Newton, 45 Mo.App. 312; State ex rel. Paving Co. of St. Louis, 183 Mo. 230; Savings Bank v. Ridge, 183 Mo. 506. (10) Galbreath v. Newton, 45 Mo.App. 312; State ex rel. Paving Co. of St. Louis, 183 Mo. 230; Savings Bank v. Ridge, 183 Mo. 506.

OPINION

Bland, J.

This is an action in two counts, each on a special tax bill issued by the City of Higginsville. There was a verdict and judgment against the defendants establishing a lien on the land against which the tax bills were issued, together with a personal judgment, aggregating the sum of $ 1515.35, against the defendant, the Kansas City, St. Louis & Chicago Railroad Company (hereinafter called the defendant). Defendant has appealed.

The original tax bills issued by the City on the 13th day of December, 1928, were made out to Ernest Vermillion. They were issued in part payment for the paving and curbing of Blackstone and Boggs streets, a continuous thoroughfare in the City of Higginsville. The bills were later sold to Kasco, Inc., a corporation, at the relation of which this suit is brought.

The facts show that defendant acquired, by deeds from the owners of the fee, easements over the ground against which the tax bills in controversy were issued. There is no evidence that defendant ever operated a railroad, or that it ever conveyed the easements, but the inference to be drawn from the evidence is that, at the time of the issuance of the original tax bills in 1928, the Receiver of the Chicago & Alton Railroad Company, was operating a railroad over the land in question, under a lease or leases.

The evidence shows that the Chicago & Alton Railroad Company, during the years 1922 to 1931, was in the hands of a receiver; that on March 3, 1931, all of the property of that company, including the leases in question, was conveyed, by a special master's deed, made pursuant to a sale under the receivership, to the defendant, the Alton Railroad Company, for the stated consideration of $ 23,000, subject to a mortgage, in which the Illinois Trust and Savings Bank, was the trustee.

The proceedings for the paving and curbing in question were begun by a...