Granite Bituminous Paving Co. v. Fleming

• Citation: 158 S.W. 4
• Parties: GRANITE BITUMINOUS PAVING CO. v. FLEMING.
• Decision Date: 17 June 1913
• Court: United States State Supreme Court of Missouri

158 S.W. 4

GRANITE BITUMINOUS PAVING CO. v. FLEMING.

Supreme Court of Missouri, Division No. 2.

June 17, 1913.

1. MUNICIPAL CORPORATIONS (§ 450)—LOCAL IMPROVEMENTS—ASSESSMENT DISTRICTS—ACCIDENT.

Under St. Louis city charter, providing that a part of the cost of a street improvement shall be assessed according to area on property within a district bounded by a line drawn midway between the street to be improved and the next parallel street on each side thereof, it is not unlawful to make a benefit district deeper on one side of the street to be improved than on the other side.

2. PLEADING (§ 214) — DEMURRER — ADMISSIONS.

A demurrer to a pleading admits the truth of the facts well pleaded, but does not admit the truth of conclusions, conjectures, or matters in the nature of a prediction asserted by the pleader.

3. MUNICIPAL CORPORATIONS (§ 567) — STREET IMPROVEMENTS—PROPERTY BENEFITED—PLEADINGS.

An answer, in an action to enforce a special tax bill issued for a part of the cost of a street improvement, which alleges that the improvement is of no benefit to defendant's property or of no greater benefit to him or his property than that of any other person or property in the city because he can make no

use of the improved street in connection with his property, situated within 450 feet of the street, does not allege as a fact that the property is not benefited by virtue of the charter of the city declaring that the improvement of a street will benefit all property situated nearer to it than to any other parallel street.

4. MUNICIPAL CORPORATIONS (§ 323) — STREET IMPROVEMENTS—MISCONDUCT OF OFFICERS—EQUITABLE RELIEF.

Where the officers of a city designedly and capriciously attempt to open and construct streets so as to place burdens on a property owner which he cannot in good conscience be required to bear, he may secure relief by timely application to a court of equity.

5. MUNICIPAL CORPORATIONS (§§ 488, 489)— STREET IMPROVEMENTS—MISCONDUCT OF OFFICERS—EQUITABLE RELIEF.

Where an owner of property within an assessment district allowed the city to let a contract to improve a street and the contractor to improve the street in accordance with the contract, the owner could not escape liability for his part of the cost on the ground that his land will be taxed for other streets which the city will establish.

6. MUNICIPAL CORPORATIONS (§ 450) — STREET IMPROVEMENTS — ASSESSMENT DISTRICTS—BOUNDARIES.

Where a city charter automatically fixes boundaries of benefit districts at the time of letting contracts for street improvements and the issuance of tax bills, the boundaries of the district need not be fixed by ordinance.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by the Granite Bituminous Paving Company against Andrew R. Fleming. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sues to enforce a special tax bill in the sum of $243.41 against a strip of land 145 feet wide by 155 feet long owned by defendant in the city of St. Louis, Mo. Said tax bill was issued for part of the costs of paving and improving Delmar avenue, a public street running east and west through said city.

Under the charter of St. Louis the cost of improving its streets is taxed against the lots or lands on each side of the street improved. The lands thus classified for taxation are called "benefit districts" because they are supposed to be benefited on account of their proximity to the street to be improved. One-fourth of the cost of such street improvements is levied upon the frontage of the property abutting or adjoining the street to be improved, and the remaining three-fourths of such cost upon the area of such lands as fall within the limits of the benefit district. The charter fixes the boundaries of benefit districts at a line to be drawn midway between the street to be improved and the next parallel or converging street on each side thereof.

In this case the nearest street on the north side of Delmar avenue is Von Versen avenue, distant 350 feet, so that the assessment district on that side of Delmar avenue was only 175 feet deep; but on the south side of Delmar avenue, the nearest parallel street, is Waterman avenue, distant from Delmar avenue 1,438 feet, so that the benefit district on the north side of Delmar avenue is 719 feet deep. The defendant's land is situated 450 feet south of said Delmar avenue; consequently it was all included in the benefit district for improving said Delmar avenue, and taxed for that improvement according to its area. Hence the tax bill upon which plaintiff's judgment is based.

The plaintiff's petition recites the full performance of all things necessary and requisite to the issue of a valid tax bill against defendant's land. Defendant's answer, in addition to some facts which he does not now urge for reversal, contains the following allegations (italics are ours):

"(1) Defendant further says that there is a parallel or converging street on the north side of Delmar boulevard to fix and locate the district line on the north side of said Delmar boulevard, to wit, Von Versen avenue, which street is north of and parallel with and distant from the said Delmar boulevard 350 feet, making said northern district line 175 feet north of the north line of Delmar boulevard.

"(2) Defendant further says that if the district line on the south side of Delmar boulevard had been drawn the same distance from Delmar boulevard as the district line on the north line of said street, to wit, 175 feet south of the south line of Delmar boulevard, and if said district line had been so drawn, this defendant's property would be wholly without the assessment district, and that if, trict line on the south side of said Delmar boulevard, the district north of said Delmar boulevard is to be disregarded and the district line on the south side of said Delmar boulevard drawn 300 feet south of and parallel with the south line of said Delmar boulevard, then the defendant's said property would be wholly without the assessment district.

"(3) This defendant further states that the northern boundary line of the lot or parcel of land owned by the defendant and above described is a line situated 450 feet south of and parallel to the southern boundary line of Delmar boulevard, and that the northern line of said Waterman avenue is distant 1,438.82 feet south of and parallel with the south line of Delmar boulevard, and that the entire tract or parcel of land between the said Delmar boulevard on the north and the said Waterman avenue on the south and De Baliviere avenue on the east and the proposed western line of Hamilton avenue on the west is vacant and unimproved property and has never been platted and laid out in lots and blocks, nor has it any streets dedicated therein, but that if the plan of the city of St. Louis is carried out as the same exists immediately east of this tract of land, there will be laid out through said tract four streets running east and west, which streets will be between and parallel with the said Delmar boulevard and said Waterman avenue; that said streets have already been surveyed.

"(4) Defendant further states that the total area of the entire tract laid out as and for the taxing district for the improvement of Delmar boulevard between Hamilton avenue and Clara avenue is 2,059,165 square feet; that of this total area but 398,679 square feet lie north of Delmar boulevard and 1,660,486 square feet lie south of the said Delmar boulevard; that of the three-fourths of the total cost for the improvement of said Delmar boulevard $4,438.08 has been assessed against that portion of said district lying north of said Delmar boulevard, and $18,484.50 has been assessed against that portion of the district lying south of said Delmar boulevard.

"(5) Defendant further states that the northern boundary of the district north of Delmar boulevard is drawn on and along a line distant 175 feet from and parallel with the northern line of said Delmar boulevard, while the southern line of the taxing district south of said Delmar boulevard is drawn on and along a line distant 719.41 feet south and distant from the south line of said Delmar boulevard.

"(6) This defendant...