Johnson v. Duer

• Decision Date: 27 February 1893
• Citation: 115 Mo. 366,21 S.W. 800
• Parties: JOHNSON et al. v. DUER et al.
• Court: Missouri Supreme Court

21 S.W. 800

115 Mo. 366

JOHNSON et al. v. DUER et al.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

MUNICIPAL CORPORATIONS — SPECIAL ASSESSMENT — SEWERS — PRESUMPTION — MARRIED WOMEN.

1. After a contract and bond for the construction of a sewer have been approved and confirmed by an ordinance, and the work has been done thereunder, it is too late to object that the contract was not let to the lowest bidder, where the ordinance under which the contract was entered into authorizes the engineer to "reject any and all bids if deemed too high, or the parties bidding are deemed irresponsible."

2. The fact that part of the land in a sewer district cannot be drained by the sewer is no objection to the validity of the special assessment to pay for such sewer, where the only parties objecting are those whose lands are drained by the sewer.

3. An assessment to pay for the cost of a sewer may be levied on the lands benefited according to their area without regard to their value.

4. A district sewer 10,500 feet long was built by a contractor in full compliance with the plans of the city engineer, and under his immediate supervision, and was duly accepted by the city. Held, that the fact that 195 feet of the sewer ran through private property, the owners of which had not consented thereto, did not relieve the property owners from paying for that part of the sewer that ran through the public streets.

5. Where land upon which a public improvement is constructed belongs to married women in legal right, and not as separate estate, there is no presumption that they consented to its construction.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Bill by A. D. Johnson and others against Alexander Duer and the International Loan & Trust Company. Plaintiffs obtained judgment. Defendants appeal. Reversed.

The other facts fully appear in the following statement by MACFARLANE, J.:

This is a bill in equity, brought by plaintiffs, 12 citizens and property owners of Kansas City, on behalf of themselves and all other owners of real estate situate in a certain sewer district, No. 84, in said city, who may be interested. The object of the suit is to declare void a certain ordinance of the city of Kansas, establishing a sewer district, and providing for the construction of a sewer therein, and certain tax bills issued by virtue thereof, and that the clouds on the real estate of plaintiffs, created thereby, may be removed. The defendants are Alexander Duer, who is, as charged in the petition, the contractor by whom the sewer was built, and to whom was issued certain special tax bills in payment therefor, and the International Loan & Trust Company, to whom said bills had been assigned as collateral security. The petition alleged that the tax bills were void for the following reasons: (1) The contract for the construction of the sewer was not let to the lowest and best bidder as was required by the charter for all such work. (2) That the sewer was, for the distance of 195 feet, built upon and through private property, and continues so, without the knowledge or consent of the owners thereof; and that such part of the sewer is the part through which the whole sewer district is drained, and there is no other outlet provided, nor any connection with a public or other district sewer, or with the natural course of drainage, as required by the charter. (3) That the sewer was not constructed along the center of Dora avenue, as required by the ordinance establishing it, but for a distance of 193 feet runs diagonally through said avenue. (4) That the topography of the district is such that a large portion of the land and lots therein cannot be drained by said sewer, and owners of such property cannot make use of or have any benefit from said sewer and its laterals; and that said sewer has not all the necessary laterals, inlets, and other appurtenances required. The answers of defendants were, in substance, general denials.

The charter of the city of Kansas, then in force, (Acts 1875, p. 200,) gave the council power to construct three classes of sewers, — public, district, and private. Public sewers should be constructed by taxes levied upon the property of the whole city. District sewers should be established within certain districts, to be described by ordinance, and should connect with a public sewer, or other district sewer, or with the natural course of drainage. The expense of construction of district sewers should be charged as a special tax against the lots situate in the district, exclusive of improvements, in proportion to the area of the whole, exclusive of public highways. The certified tax bills, when assessed, should be delivered to the contractor for the work, who is given power to collect the amounts thereof in the name of the city, by the ordinary processes of law. The tax bill so certified should constitute a lien upon the land against which it was charged. Section 4, art. 9, of the charter gave the city power to condemn private property for the construction of public sewers, as other property is condemned for public use. Section 1, art. 8, gives the council power to establish, erect, and keep in repair bridges, culverts, and sewers, and to regulate the use of the same. Article 7 provides for condemning private property for a "route for sewer" or other public improvement, whenever the council shall by ordinance provide for establishing, opening, widening, extending, or altering the same. The charter further requires that all improvements of whatever kind shall be let to the lowest and best bidder. The ordinances provide the details for carrying out the provisions of the charter. They require that the bids shall be opened, and the lowest and best bid shall be accepted, provided, that the city engineer or other person acting "may reject any and all bids, if deemed too high, or the parties bidding are deemed irresponsible;" and immediately after the acceptance of any bid the city engineer shall require the bidder to enter into a written contract with the city. The work was let to one Caddegan, who was the lowest bidder, who failed to enter into the contract, and give the bond required; and after a delay of about 20 days the contract was let to defendant Duer on his bid, which was the next lowest, but which was about $1,100 more than that of Caddegan. The ordinance establishing sewer district 84, and providing for the construction of the sewer in question, required it to connect with the district sewer of district No. 82, in Alton avenue, at the north line of district No. 84, and run thence along the center of Dora avenue to a given point. The contract required defendant Duer to perform the work in conformity with the plans and specifications on file in the office of the city engineer, in strict obedience to the direction of the city engineer; that work should commence at such points as the engineer should direct, and should conform to his directions. The evidence shows that Dora avenue was supposed, when the contract was let, to be a continuation of Alton avenue, taking a direction almost at right angles to it. The sewer of district 82 ended in the center of the end of Alton avenue. The sewer in question, under the ordinance and contract, was required to connect with and empty into this sewer No. 82. The evidence tended to prove that Dora avenue, instead of meeting Alton avenue so as to make one the continuation of the other, intersected it some distance north of its termination, and north of the point in district sewer 82, at which connection should have been made. The sewer, under this evidence, before it reached the center of Dora avenue, passed over private property for the distance of 195 feet before it reached Dora avenue at all, and then ran diagonally along said avenue about 150 feet before it reached the center thereof. The evidence established that the entire length of the sewer and laterals was 10,500 feet; that a part of the land in the east end of the district is platted into lots and blocks with streets and alleys through it; that this platted portion has lateral sewers and inlets, but the west end, composing nearly half the district, is not platted, but is owned in large tracts by various persons. It was admitted that on account of the topography of the land there was property in the district that could not be connected with the sewer for drainage.

The court, upon the evidence, found the following facts, which were entered as a part of the judgment: "That the plat by which Dora avenue was dedicated to the public intersected Alton avenue at a point northwest of the point at which the sewer in question connected with the sewer on Alton avenue; that plats in the office of the city engineer located the street so that it intersected Alton avenue at the point where the connection of the sewer in question connected with the Alton sewer, that the ordinance providing for the construction of the sewer in question required it to be constructed in the center of Dora avenue, as that avenue was located on the maps in the engineer's office; that the sewer was constructed in exact conformity with said plans and specifications, and was constructed in the center of Dora avenue to a point within one hundred and ninety feet of its connection with the district sewer on Alton avenue; that at that point it left Dora avenue, and was constructed upon private property, owned in common by two married women, not parties to this suit, one of whom was a married woman residing in Kansas City, and the other a married woman residing in the state of California when the sewer was constructed, and had no knowledge of the construction of the sewer, and neither of whom consented to its construction through their property; that for about one thousand feet or more there are no provisions made for lateral sewers, and that a considerable portion of the property in the sewer district, owing to the topography of the...