Exter v. Kramer

• Decision Date: 28 April 1923
• Docket Number: No. 22779.,22779.
• Citation: 251 S.W. 918
• Parties: EXTER v. KRAMER et al.
• Court: Missouri Supreme Court

251 S.W. 918

EXTER v. KRAMER et al.

No. 22779.

Supreme Court of Missouri, in Banc.

April 28, 1923.

Motion for Rehearing Denied May 22, 1923.

Dissenting Opinion, May 28, 1923.

Appeal from Hannibal Court of Common Pleas; Madison Schofield, Special Judge.

Suit by Fred C. Exter against August Kramer and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Rendlen & White, of Hannibal, for appellant.

Joseph F. Baary, of New London, and Berryman Henwood, of Hannibal, for respondents.

Statement.

WOODSON, C.J

This suit was brought in the circuit court of Marion county by the plaintiff against the defendants, to enforce the lien of a certain tax bill issued by the city of Hannibal, for the consideration Of certain street improvements made in that city in front of defendants' property.

The trial resulted in a judgment in favor of defendants, and the plaintiff duly appealed the case to this court. The facts are as follows:

The city of Hannibal has less than 30,000 inhabitants and operates under special charter. The tax bill sued upon was issued under the provisions of section 8758, R. S. Mo. 1919, formerly section 9618, R. S. Mo. 1909.

Martin street, prior to this improvement, had a branch or water course running through it, there was no adequate usable roadway through the street, and it was practically impassable for vehicular traffic prior to the installation of the work for which the tax bill was issued. This work made it a street in fact.

The city of Hannibal, upon the repeated. Petitioning and urging of the abutting proprietors, including defendants, duly proceeded according to law for the improving of the roadway of this street, by passing and duly publishing a resolution giving notice to the property owners to be affected, that the street would be thus improved, and duly enacted ordinances thereafter for the doing of the work in controversy, which consisted in the making of a concrete box of about 4 feet square along the center of the street. Plaintiff was the successful bidder and did the work under due contract therefor. The top of this concrete box which thus confined the water course through the street, came within a few inches of the top of the established grade of the street and became the foundation for, and the base of, the surface of the street forming the substantial and supporting part thereof, without which there could be no passable roadway. The cost of this improvement was something like $1,500. The abutting proprietors were greatly benefited by the installation of the work, petitioned the city to have the work done, and then stood by and saw the same installed, and were anxious to receive the benefit thereof and have done so, but now want to escape the payment of the same, while they enjoy its benefits, leaving the improvements of the street that made it a passable street to be paid for by' the plaintiff contractor. Defendants raised no objection to the doing of the work, but sought to have it done.

Every abutting property owner continually petitioned the city to do this work, agreeing if the city would have the work done and issue tax bills therefor they would so pay for the improvement. All are now declining to pay the bills.

The work was properly installed, no objection was made to the manner of doing the work, and the only serious defense offered is that the city of Hannibal had no authority to do the work and issue special tax bills against abutting property in payment therefor. Appellant contends that the city of Hannibal did have such authority, and the tax bill is valid, and finding and judgment of the trial judge should be reversed and the cause remanded, with directions to enter judgment for appellant as in his petition prayed.

Defendant's answer, among other things, challenges the authority of said city to issue the special tax bill in question, and also challenges the validity of the alleged ordinance by which said city undertook to authorize the issuance of special tax bills against property abutting said alleged improvement, because in said alleged ordinance said city attempted to exclude from said special tax assessment a certain lot which abuts said alleged improvement and attempted to include in said special tax assessment certain other lots which do not abut said alleged improvement.

Plaintiff's reply is a general denial of the allegations of new matter in defendants' trial answer.

The evidence is entirely free of conflict on every issue. It shows that the part of Martin street involved in this controversy, to wit, between Fulton avenue and the south line of Ann street, was nothing more than the bed of a small creek or natural water course, which was not accessible for vehicle traffic in times of freshets or heavy rains. The alleged improvement was a concrete box culvert about four feet in height and width, constructed in a zigzag course along that part of Martin street above mentioned, for the purpose of carrying off the natural flow of water formerly left confined only by the banks on either side of said street. The. completion of this alleged improvement and of the work for which the special assessment in question' was levied to cover, left this part of Martin street entirely inaccessible for vehicle traffic, until said box culvert was covered or arched over with earth and other materials, in order to bring the same to the established grade of said portion of said street.

The plaintiff designates the alleged improvement as a box culvert. The evidence, as a whole, establishes that the alleged improvement is a culvert, and that the top of the culvert forms the base of the surface of the street.

Defendants' Exhibits 4, an official map of the city of Hannibal, and 5, a map of Martin street and adjacent properties, show all of the various lots, parcels, and tracts of land which abut the alleged improvement.

Defendants' Exhibit 2, the alleged special assessment ordinance, shows that lot 15 in block 11 of Wardlow's addition, which abuts said alleged improvement on the west side of Martin street, is excluded from said special assessment, and that lots 9, 10, 11, and 12 in block 14 of Wardlow's addition, which do not abut said alleged improvement, are included in said special assessment.

Respondents contend that there is no evidence that the defendant Kramer, now respondent, ever petitioned the city of Hannibal to make the alleged improvement, although the plaintiff, now appellant, so states. On this matter, plaintiff's own witness, Smiley, testified as follows: ": don't remember whether Mr. Kramer was among these property owners." But there was ample evidence tending to show that all the other property owners petitioned to have the work done.

At the conclusion of all the evidence in the case, the special judge, Hon. Madison Schofield, before whom the case was...