City of Independence, to Use of Flournoy v. Dickinson
| Decision Date | 05 May 1930 |
| Citation | 27 S.W.2d 1081,224 Mo.App. 899 |
| Parties | CITY OF INDEPENDENCE TO USE OF ANNIE F. FLOURNOY, EXECUTRIX, ETC., RESPONDENT, v. WILLIAM DICKINSON AND ALICE DICKINSON, APPELLANTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.
REVERSED.
Judgment reversed.
J. P Flournoy for respondent.
Martin B. Dickinson for appellant.
Trimble, P. J., absent.
This is a suit to enforce the lien of special tax bills issued by the city of Independence, Missouri, in payment of the cost of constructing a joint district sewer. The action was originally brought to the use of W. S. Flournoy, now deceased, and has been revived to the use of his personal representative. The case was tried before the court without a jury, judgment was rendered foreclosing the lien of the tax bills, and the defendants have appealed. The defendants are the owners as tenants by the entirety of lots 18, 19, 20, 21 and 24 in Edgewood Park, an addition to the city of Independence. These lots lie along the east boundary of sewer district No. 80. Immediately west of this district lies sewer district No. 79. The council passed an ordinance creating joint sewer district B which is composed of sewer districts Nos. 79 and 80.
In order to indicate the location of the two districts and the natural drainage of the land we indicate the location of certain streets in the city of Independence. The following streets run approximately north and south and are named in their order going east; Spring Street, Osage Street, Liberty Street, Main Street, Lynn Street, Nolan Street, High Street. The following streets run approximately east and west and are named in their order going south: Jones Street, Kendall Avenue, Elizabeth Street, Nickell Avenue. The north boundary of sewer district No. 79 is between Jones Street and Kendall Avenue. The west boundary is the alley between Main Street and Lynn Street. The south boundary is slightly north of Nickell Avenue from the east boundary to Liberty Street and then it runs along the north line of Nickell Street. The east boundary is the alley between Spring Street and Osage Street.
The north boundary of sewer district No. 80 is an extension of the north boundary of sewer district No. 79 to a point which is apparently the alley east of High Street. The east boundary is apparently the alley east of High Street to a point south of the south boundary of sewer district No. 79, but this district extends several blocks south of the south boundary of district No. 79. The west boundary of district No. 80 is the east boundary of district No. 79 except where district No. 80 extends south of the south boundary of district No. 79. There is a divide in the east part of district No. 79 which is approximately at Main Street. The ground slopes downward from this divide on both sides. There is another divide in district No. 80 which is approximately at High Street from which the ground slopes downward on both sides. There is a natural ravine or depression in district No. 79 beginning approximately at the southeast corner of the district and which leaves the district a little south of the northwest corner. In district No. 80 there are two natural ravines or depressions. Beginning at Nickell Street the water naturally flows north approximately at Lynn Street in one of these depressions and approximately at Nolan Street in the other depression. These two ravines then come together before passing out of the district and then the water flows north and slightly west and thus crosses the north boundary of the city. All of the water drains from that part of district No. 80 east of the divide at High Street in an easterly direction until it passes out of the district and then flows in a northerly direction.
All of these watercourses finally empty into Mill Creek which is outside of the city and which in turn finally empties in the Missouri River. Defendant's testimony was to the effect that the stream or ravine which drains district No. 80 goes dry in the summer but is fed by springs and is running the balance of the year, and that the stream or ravine in district No. 79 is probably never dry. The city engineer testified for the plaintiff and went very fully into the lay of the land and the natural drainage of the two districts, but did not testify as to whether or not the ravines in the two districts were ever dry or as to what portion of the year they contained running water. He testified as follows:
He also testified that practically all of the joint sewer district would drain to the north except that part of "Edgewood District" would drain toward the east.
The evidence shows that the city has established three public sewers; one in the northwest, one in the east, and one in the south part of the city. The defendant's land lies in the northeast part of the city and the engineer testified that at the time the public sewers were established it was not considered necessary to construct a public sewer in the northeast part of the city because these two districts could be taken care of by making a cut which was not more than had been made in a large number of districts. The joint district sewer which was established in joint sewer district B begins at the intersection of Kendall Avenue and Nolan Street and runs west along Kendall Avenue to one of the main public sewers. It crosses the natural watercourse in district No. 80 at a point between Lynn and Nolan Streets upon a trestle, where the sewer is about four feet above the ground, so that the water from district No. 80 now drains under the sewer in the same manner that it did before the joint district sewer was established.
OPINION.Appellant contends that the establishing of joint sewer district B and the joint district sewer therein constituted ultra acts upon the part of the city, because the joint sewer district included a district not contained in its natural drainage area or watercourse. Respondent contends that the facts do not show that the city exceeded its powers, and that the proviso at the end of Section 8306, Revised Statutes 1919, to the effect that the joint sewer district shall not include any district not contained in its natural drainage area or natural watercourse only modifies the provisions in the section that the action of the council creating a joint sewer district shall be conclusive as to the necessity therefor, and does not modify the declarations found in the very beginning of the section wherein the power is granted to establish joint sewer districts. It seems to us that respondent's suggestion as to the construction of the proviso has not been followed to its logical conclusion. If we should concede that the proviso against including any district not contained in the natural drainage area or watercourse of the joint sewer district applied only to the conclusive effect of the action of the council, it is yet necessary to determine the effect of the proviso. That part of the statute which provides that the action of the council should be conclusive is as follows:
"And the action of the council creating the joint sewer district shall be conclusive as to the necessity therefor, and no special tax bills shall be held invalid or be affected on account of the included drainage area thereof, or the size, character, or purpose of such sewer."
If it be true that the proviso does away with the conclusive effect of the action of the council concerning these matters, then the statute must necessarily mean that the question is for the court. Surely there is no necessity for the court to determine the question if the result is to be the same no matter how the question is determined. Therefore, if the question as to whether the council has created a joint sewer district which includes a district not contained in its natural drainage area or watercourse is a matter reserved for the determination of the courts, but in other respects no tax bills may be declared void on account of the included drainage area, then it necessarily follows that the court only determines whether the proviso has been...
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Hammack v. Missouri Clean Water Com'n, 12999
...note that drainage is usually through tributaries that empty into streams. City of Independence to the use of Flournoy v. Dickinson, 224 Mo.App. 899, 27 S.W.2d 1081, 1083 (1930). The question posed here is whether the discharge of the polluted effluent from the restaurant's septic tank disc......