City of Houston v. Duff

• Decision Date: 13 September 1960
• Docket Number: No. 7843,7843
• Citation: City of Houston v. Duff, 338 S.W.2d 373 (Mo. App. 1960)
• Parties: CITY OF HOUSTON, a municipal corporation, Plaintiff-Respondent, v. W. E. DUFF, Herbert Coats, James Tweed, Ray Lilly, Jack Fogg, Fred Sillyman, Nolan Hutcheson, C. O. Bennett, Coy Haggard, Glen Romines, Elmer Frederick, John Hill, Charles Manier, Walter Redmon, Herman Head, George Harmon, E. E. Crawford, Ed Nichols, Emma Baker, Earl Sawyer and A. J. Haney, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 373

338 S.W.2d 373

CITY OF HOUSTON, a municipal corporation, Plaintiff-Respondent, v. W. E. DUFF, Herbert Coats, James Tweed, Ray Lilly, Jack Fogg, Fred Sillyman, Nolan Hutcheson, C. O. Bennett, Coy Haggard, Glen Romines, Elmer Frederick, John Hill, Charles Manier, Walter Redmon, Herman Head, George Harmon, E. E Crawford, Ed Nichols, Emma Baker, Earl Sawyer and A. J Haney, Defendants-Appellants.

No. 7843.

Springfield Court of Appeals, Missouri.

Sept. 13, 1960.

Wm. Duke Hiett, Houston, for defendants-appellants.

Lay & Ichord, Houston, for plaintiff-respondent.

STONE, Presiding Judge.

This is an action by the City of Houston, Missouri, under the so-called Sawyer Act [V.A.M.S. 71.015; Laws of 1953, p. 309] for a declaratory judgment authorizing it to annex four contiguous tracts (hereinafter referred to as the contiguous tracts) having an aggregate area of 487.69 acres. Its pleaded theory is that the proposed annexation 'is reasonable and necessary, because of the city's need of additional land for residential and industrial building sites and general police power and regulations, for the proper development of said city.' Following trial, the circuit court entered the judgment sought by the city. Eight defendants, landowners in the contiguous tracts, have perfected this appeal.

As is usually the case in proceedings of this character, the evidence took a wide range and the transcript is exceedingly long. In the discharge of our appellate function to review the case de novo and to reach our own conclusions with respect to the law and the facts, weighing and evaluating all competent evidence with due deference to the findings of the trial court where the credibility of witnesses is involved [V.A.M.R. Civil Rules 87.11 and 73.01(d), formerly V.A.M.S. 527.070 and 510.310; City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, 516(1)], we have read and reread the entire transcript, have sifted and resifted the whole record, and have pondered and repondered the facts. But, since we could not detail all of the evidence within the tolerable limits of an appellate opinion, we perforce restrict ourselves to summarization of those facts which, in our considered judgment, are material, persuasive and controlling.

Houston, a city of the fourth class incorporated in 1893 and the county seat of Texas County, is a proud, prosperous, progressive community nestling in beautiful but rough Ozark hill country. Contrary to the experience of many communities in rural sections, Houston has had a steady increase in population, as reflected by census figures of 612 in 1930, 820 in 1940, 1,277 in 1950, and 1,657 in 1960. ¹ Mayor Hill pointed out that some twelve homes were being constructed at the time of trial and about thirty residences had been built during the preceding year, and the city clerk said that, during the period of about seven years from municipal acquisition of the electric distribution system in July 1952 to the time of trial, 169 residential users and 30 commercial users had beed added to the electric distribution system, with 40 of those residential users and 8 of those commercial users having been added 'in the last year.' ² But, although the city's rate of growth during the immediate past is an important factor in proceedings of this character [cf. Faris v. City of Caruthersville, Mo.App., 301 S.W.2d 63, 69(10)], it is not, on the record before us, determinative.

The city produced only four witnesses whose testimony purported to go directly to the pleaded issue, i. e., whether the city needs additional land for building sites. These witnesses were (1) Mayor Hill who has been 'in the real estate business as a profession' for about twenty years, (2) Columbus Tuttle, a member of the Board of Aldermen who has been in the 'building business' about twenty-five years, (3) Everett Austell, who does 'a little building and a little loaning' and is an associate of Alderman Tuttle, and (4) Lee Holt who has been 'building homes' since 1948. Careful analysis of the testimony of these witnesses demonstrates that the burden of their testimonial message was that the city needs additional land for building sites because (a) most of the unplatted land within the present boundaries of the city is not for sale and (b) 'cheap priced lots' in the platted additions are relatively scarce. Illustrative of the testimony offered by the city in support of these contentions is the following:

(a) Mayor Hill said that 'some of these lots' in platted additions within the city 'are expensive lots' for homes costing $12,000 to $15,000. 'I have a lot of calls for cheaper lots'--'we are * in need of lots where they can build cheaper homes and * I don't have them for sale myself'--'I don't know of any reasonable, cheap priced lots to any extent, at this time.' With respect to an unplatted 40-acre tract owned by Ralph Lilly in the southwest corner of the city, which is 'in timber and woods' and has no building on it, Mayor Hill tersely commented that 'it is not for sale, according to my information,' without disclosing when, where or from whom such 'information' was obtained.

(b) The kernel of Alderman Tuttle's testimony was that, although he knew 'four or five' people in Houston who had building lots for sale, 'they're getting scarcer all the time, pretty hard to come by, reasonable priced lots that is.' When, in the course of cross-examination with respect to various tracts within the city, inquiry was made concerning an unplatted 10-acre tract owned by John Baker in the south central part of Houston, Alderman Tuttle said that 'I tried to buy from him, as a matter of fact,' without indicating when, at what price, or under what circumstances.

(c) The question propounded to witness Austell as to 'whether or not Houston is in need of additional building lots' elicited the prefatory comment that 'it depends on what type of building we're building,' followed by the statement that there are lots available for better homes 'but the type of home that we're trying to build and hold them around seven to eight thousand dollars, why the lots of that type is getting, I'd say, practically immune.' Austell readily conceded that 'about the only thing we've looked at, been interested in, is something that had already been developed to a certain extent.'

(d) Witness Holt thought that residential building lots in Houston are 'a little scarce'--'I don't know of very many of the kind I'd wanna buy to build the homes that I build' to sell for $5,000 to $7,000. Holt 'recently' purchased about 9 acres in one of the contiguous tracts (referred to as Tract 1). His testimony, altogether silent on the subject, leaves us in the dark as to what he has built or intends to build on this 9-acre tract, but we find a not-too-positive statement by Mayor Hill that 'I believe there is a house or two started over there.'

On the record presented, we are convinced that there has been and still is much room for growth within the present boundaries of the city which, since the last annexation in 1926, have encompassed an area of 740 acres. The city clerk frankly conceded that 'there are just lots of vacant lots and large tract areas of land all over the City of Houston that have no residential dwelling or business buildings on (them)'; Alderman Tuttle readily agreed that, within the present city limits, 'there's * * * lots a room for development'; and a map (hereinafter referred to as the map) prepared by a civil engineer then in the city's employ, which reflects and locates every dwelling and business building in the city, shows that more than 300 acres within the present boundaries of Houston are unplatted and undeveloped.

More specifically, we note the following evidence as to building sites in certain platted subdivisions within the city. A 'reasonably level' tract of 30 acres in the northwest corner of the city was platted in June 1958 as King-Wells Addition. Of the 82 lots in this addition priced at $1,000 to $1,200 per lot, none had been sold at the time of trial one year later. Two blocks containing an aggregate of 24 lots, none smaller than 80 feet by 140 feet, were platted in June 1958 as Sunset Terrace Addition, sometimes referred to as Howerton's Addition. Mayor Hill thought that Howerton 'possibly has 15 lots' for sale. The map shows only 2 houses in this addition, leaving 22 vacant lots. The only reference to the market price of these lots was Mayor Hill's observation that 'they're reasonably high.' A tract in the south part of the city was platted in May 1957 as Lilly-View Addition. In this addition containing 66 lots available at an 'average' price of $800 per lot, the map shows only two houses, but Alderman Tuttle thought that there were 'about four (houses) in there' at the time of trial. Witness Austell considered the lots in this addition 'not too desirable'--'brush is still on them.' However, on cross-examination Alderman Tuttle referred to Lilly-View as a 'very nice addition.' Hill's Addition containing 120 lots with a frontage of 25 feet each (the equivalent of 60 lots with a frontage of 50 feet each) in the northwest part of Houston was platted in November 1921. From the map it appears that 13 houses have been built in this addition. The only evidence bearing upon the value of lots in this addition was that many of them 'sold for taxes * just a few years ago.' Orchard Grove Addition containing 63 lots, each 50 feet by 190 feet, was platted in October 1907. In this addition, there are but five houses, of which only one has been built within the past ten years. Witness Austell did not know that Orchard Grove was a platted addition--'I thought it was a cow pasture.' Alderman Tuttle doubted whether lots in this addition had been for sale 'all this time,' but he readily admitted knowledge that the owner of 26 lots had tried 'to sell them for several months' during the year prior to trial. There was no evidence of the market price of lots in this...