Collier's Estate v. Western Paving & Supply Co.

• Decision Date: 09 March 1904
• Citation: 79 S.W. 947,180 Mo. 362
• Court: Missouri Supreme Court
• Parties: COLLIER'S ESTATE v. WESTERN PAVING & SUPPLY CO. KAUFFMAN et al. v. SAME.

79 S.W. 947

180 Mo. 362

COLLIER'S ESTATE v. WESTERN PAVING & SUPPLY CO.

KAUFFMAN et al. v. SAME.

Supreme Court of Missouri.

March 9, 1904.

STREET IMPROVEMENT — FORMATION OF ASSESSMENT DISTRICT — ESTOPPEL TO CONTEST.

1. A city charter provided that three-fourths of the cost of street grading should be assessed on all the property in the assessment district, to be established by drawing a line midway between the street to be improved and the next parallel or converging street on each side thereof, except that, if the property adjoining the street to be improved was divided into lots, the district line should embrace the entire depth of all lots "fronting on" such street, and if the line, when drawn midway, would divide a lot lengthwise, running within 25 feet of the nearer boundary thereof, then it should diverge and follow such boundary. If there were no parallel or converging streets, the line was to be drawn 300 feet from the street to be improved, while, if a parallel or converging street existed only on one side, the line on the other side should be drawn equidistant with the line thus indicated. Throughout the charter the phrases "fronting upon or adjoining" and "fronting upon or bordering on" were used in reference to assessments on the linear basis, while sidewalk assessments were directed on abutting property. The charter defined "lot" as the lots shown by recorded plats, but, if there were no such plat, or if the owners of the property had disregarded the lines of the lots as platted, and treated two or more or fractions thereof as one lot, then the whole should be regarded as one lot. An entire block, bordered by a street to be improved, was improved by the erection of a residence and outbuildings fronting on a street intersecting the former; the entrance to the property being on such intersecting street. The half of another block, which was vacant, extended lengthwise 817 feet on another intersecting street, with a depth of 225 feet on the street to be improved, and taxes had been assessed against it as fronting on such intersecting street, while residences on the other half of the block faced the parallel intersecting street. Neither tract had been platted as provided by the charter. Held, that drawing an assessment district line so as to include these entire tracts violated the charter.

2. A city charter defined the term "lot," as used in connection with the establishment of assessment districts for street improvements, to mean lots shown by recorded plats of additions or subdivisions, but, if there were no such recorded plat, or if the owner had disregarded the lots as platted, the whole tract should be treated as one lot. Held, that the allotment of portions of a tract in the survey in a partition suit, and the recording of such allotments with the commissioner's deed, did not constitute a division of the lots by recorded plat, as contemplated by the charter; the allotment not having been approved by the board of public improvements, nor recorded in the platbook in the recorder's office.

3. A city charter provided that the assessment districts for street improvements should be established by drawing a line midway between the street to be improved and the next parallel or converging street on each side thereof. A private way had remained open and unobstructed for more than 10 years, during which time it had been used as a street by the public. The title was vested in trustees for the exclusive use of certain property owners, and, though appearing in a plat, it was expressly reserved by an indorsement for the exclusive use of the property owners. Held, that it was not a parallel or converging street, within the charter provision.

4. A property owner is not estopped to contest the legality of the formation of an assessment district for a street improvement, through a suit to set aside a special tax bill, by the fact that he allowed the work to proceed to completion, as the only provision for remonstrance and objection is as to the "proposed improvement" and the "kind of material and manner of construction."

In Banc. Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Suits by Collier's Estate and by Nellie B. Kauffman and another against the Western Paving & Supply Company. From a judgment for plaintiffs in each case, defendant appeals. Consolidated for purposes of hearing, and judgments affirmed.

Finkelnburg, Nagel & Kirby and Adiel Sherwood, for appellant. Edward S. Robert and Geo. C. Hitchcock, for respondent Collier's Estate. E. S. Robert and Wm. E. Baird, for respondents N. B. Kauffman and others.

GANTT, P. J.

The two above causes were heard together, and submitted on the same briefs. The proceeding in each is a suit in equity to set aside and annul a special tax bill assessed against the respective real estate of the plaintiffs for the improvement of King's Highway Boulevard, a public thoroughfare in the city of St. Louis. The bill in each case alleges that the assessment is erroneous and greatly in excess of what it should be; that said tax bill is a lien on all of the plaintiff's said property, and is a cloud upon plaintiff's title.

"The validity of said assessments is questioned on two grounds: (1) That the district on which said assessments are based was not established in accordance with the provisions of section 14, art. 6, of the amended charter of the city of St. Louis. (2) That, if said district was established in accordance with said section 14 of article 6, then said section 14 of said article 6 is void, and it violates section 1, art. 14, of the amendments to the Constitution of the United States in two particulars, to wit: (a) By denying to respondents the equal protection of the laws, by subjecting all of the respondents' said property to the lien of said assessment, and in not subjecting other land adjoining King's Highway Boulevard, and similar in location to respondents' property in respect of said King's Highway, the street to be improved, to the lien of a like assessment for its pro rata share of three-fourths of the cost of said improvements. (b) By making an illegal, unreasonable, unjust, and unconstitutional classification of property, by dividing the same into lots, as shown by recorded plats of additions and subdivisions, and into lots of property which have not been so platted or recorded, whereby respondents' entire property has been unjustly charged with a part of three-fourths of the cost of said improvement, and approximately only one-half of other blocks of ground, similar in size and location to respondents' said property in respect of said King's Highway, the street to be improved, has been charged with a part of said three-fourths of the cost of said improvement.

"The property of the Collier estate is situated in city block No. 3881 of the city of St. Louis. Said block is bounded on the west by King's Highway Boulevard, the street to be improved, on the east by Euclid avenue, the street next parallel to King's Highway Boulevard on the east, on the south by Maryland avenue, on the north by Berlin avenue. The northern half of said block is owned by a number of different persons, who have improved their respective parcels of ground by the erection of residences, all of which front on Berlin avenue for a distance of some eight hundred seventeen (817) feet. The southern half of said block No. 3881 is the property of the Collier estate, and is vacant and unimproved. It has a front on Maryland avenue of about eight hundred seventeen (817) feet. a depth of two hundred and twenty-five (225) feet on King's Highway Boulevard, the street to be improved, and said Euclid avenue, respectively. No part of the property situated in either the northern or southern half of said block No. 3881 has been divided into lots in additions or subdivisions, and a plat thereof filed in the office of the recorder of deeds of the city of St. Louis, as provided by article 6, § 1, of the scheme and charter of the city of St. Louis, previous to the amendment of October, 1901. The property of the respondent Kauffman is situated in the western part of the city of St. Louis, and constitutes said block No. 3882. Said block is bounded on the west by King's Highway Boulevard, the street to be improved, on the east by Euclid avenue, the street next parallel to King's Highway Boulevard on the east, on the south by Lindell Boulevard, and on the north by Maryland avenue. This ground has been improved by the erection of a residence and outbuildings upon the western half thereof. The buildings face toward the south upon Lindell Boulevard, and the natural front of the property is upon that street; the entrance to and exit from said property being upon Lindell Boulevard. The ground has never been subdivided into lots by filing and recording a plat thereof in the office of the recorder of deeds of the city of St. Louis, in platbooks provided for that purpose, as provided by article 6, § 1, of the scheme and charter of the city of St. Louis. The complaint of the Collier estate is that the entire south half of city block 3881 is included in the area assessment for the purpose of paying for three-fourths of the cost of the improvement of King's Highway, and that only the western half of the south half of city block 3881 should have been included within the area assessment for that purpose. The complaint made by the Kauffmans is that all of city block 3882 was included in the area assessment for the purpose of raising three-fourths of the cost of improvement of King's Highway, and that only the western half of that city block should have been included within the present area assessment. The petitions in both cases refer to the fact that, in fixing the line of the improvement district in the northern half of said city block 3881, the eastern line of the improvement district in said northern half of city block 3881 is drawn midway between King's Highway and Euclid avenue, and that the same...