City of Webster Groves to Use of Wise v. Taylor

• Citation: 13 S.W.2d 646,321 Mo. 955
• Decision Date: 31 December 1928
• Docket Number: 26346
• Parties: City of Webster Groves to Use of Philip C. Wise, Appellant, v. Seneca C. Taylor et al
• Court: Missouri Supreme Court

13 S.W.2d 646

321 Mo. 955

City of Webster Groves to Use of Philip C. Wise, Appellant, v. Seneca C. Taylor et al

No. 26346

Supreme Court of Missouri

December 31, 1928

Motion for Rehearing Overruled February 1, 1929.

Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.

Reversed and remanded (with directions).

W K. Koerner and Philip C. Wise for appellant.

(1) The ordinance defining the boundaries of the sewer district is a legislative determination that all property included within said boundaries are duly benefited. This determination is conclusive and will not be reviewed by the judicial branch of the government unless it can be shown to be fraudulent, or so palpably unreasonable or arbitrary as to be plainly an abuse of power, instead of the use of power in good faith. Williams v. Hybskmann, 311 Mo. 332; McMurry v Kansas City, 283 Mo. 479; West v. Burke, 286 Mo. 368; McGhee v. Walsh, 249 Mo. 266; Prior v. Construction Co., 170 Mo. 439; Heman v. Schulte, 166 Mo. 409; Branson v. Bush, 151 U.S. 159; Miller v. Drainage District, 256 U.S. 129. (2) A special assessment will not be set aside merely because the property in question does not receive direct benefit. Miller v. Drainage District, 256 U.S. 129; Houck v. Drainage District, 239 U.S. 254; Branson v. Bush, 251 U.S. 190.

E. G. Curtis and Seneca C. Taylor for respondent.

The theory of local assessments for sewers and other public improvements is that the property assessed is specially benefited by the improvement. 25 R. C. L. 79, 97. Where property, which cannot be benefited by an improvement, is included in a taxing district for that improvement, and it is shown that such action is arbitrary, devoid of any reasonable basis, or an abuse of power, the assessment aganst it is void. Skinker v. Heman, 148 Mo. 349; Prior v. Construction Co., 170 Mo. 439; Land & Imp. Co. v. City, 257 Mo. 291; St. Louis v. United Ry. Co., 263 Mo. 387; McMurry v. Kansas City, 283 Mo. 479; Myles Salt Co. v. Commissioners, 239 U.S. 485; Hancock v. Muskogee, 250 U.S. 458.

OPINION

Ragland, J.

This is a suit on a special tax bill issued by the city of Webster Groves for the construction of sewers in its Storm Water Sewer District No. 1. The petition is in the usual form. The answer admits the ownership of the property described in the petition; denies generally all the other allegations of the petition, and affirmatively alleges:

"For further answer these defendants state that the property described in plaintiff's petition and owned by these defendants is not in the natural drainage area supposed to be covered by Storm Water Sewer District No. 1 referred to in plaintiff's petition, and the natural drainage of said property is not toward the Storm Water Sewer District described in plaintiff's petition, but in the opposite direction, and it would be impossible for these defendants to drain their property into the sewers constructed in said alleged Storm Water Sewer District, and that said Storm Water Sewers are of no benefit to said property, and the including of these defendants' property in said district is illegal and the assessment against said property for the cost of said sewers constitutes the taking of defendants' property without due process of law, contrary to Section 30 of Article 2 of the Constitution of the State of Missouri and contrary to Section 1 of the Fourteenth Amendment to the Constitution of the United States, and the said tax bill is illegal, void, and not binding on these defendants and is not a lien against the said property of these defendants."

Other technical defenses, touching the validity and sufficiency of the ordinances creating the district, were also pleaded. But on the trial it developed that these were without substantial merit, and as they have not been referred to in either the brief or argument of the defendants in this court, we will treat them as abandoned.

Defendants' tract of land sought to be charged with the lien of the special tax bill contains approximately two acres. But for the southern boundary it would lie in the form of a rectangle. That boundary is formed by Big Bend Road, which runs in a northeasterly and southwesterly direction. The tract is 202 feet wide -- east and west; its eastern boundary is 295 feet in length; its western boundary 435 feet; and its southern boundary, on Big Bend road, 245 feet. The tract is said to front on Plant Avenue, which froms its eastern boundary. Big Bend Road is one of the principal thoroughfares of the city. Approximately 115 feet south of defendants' west line the street last named is intersected by Jackson Road, a street running east and west. Maple Avenue, a north-and-south street, lies a half block west of defendants' west line. There is a storm-water sewer in Maple Avenue, beginning at Jackson Road and extending northwardly. This storm-water sewer is the nearest of any in the district to defendants' property.

A civil engineer, Dziatzko, at defendants' request made a topographical survey of their ground. From his testimony, and his map, it appears that a high ridge extends from the east side in a somewhat southwesterly direction across the tract approximately parallel with Big Bend Road. The ridge is slightly north of the middle of the tract, and the highest point on it is near the west line. Dziatzko testified that in a general way the tract drained toward the northeast and southeast. Interrogated in detail, he said that rain falling on the north 75 to 125 feet of the tract drains in part to the north and northwest, and in part to the northeast; that rain falling south of the dividing ridge drains for the most part to the south and southeast, but that some of it drains to the southwest; that water falling on the north portion drains into a sink hole on adjoining property not in the sewer district; that the water which flows southwest goes into another sink hole on defendants' property; that the water which flows east and northeast drains into Plant Avenue and from thence...