Kurtz v. Knapp

• Citation: 106 S.W. 537,127 Mo. App. 608
• Parties: KURTZ v. KNAPP et al.
• Decision Date: 02 December 1907
• Court: Missouri Court of Appeals

106 S.W. 537

127 Mo. A. 608

KURTZ v. KNAPP et al.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

Rehearing Denied January 6, 1908.

1. MUNICIPAL CORPORATIONS — STREETS — DEDICATION — PUBLIC HIGHWAY — CHANGE IN MUNICIPALITY — EFFECT.

Where a county court accepted a written dedication of land for a highway on condition that the owner would accept $250 for the land, instead of $500 as stated in the dedication, and the owner received a county warrant for $250, and the road became recognized as a public highway, the road, on a city thereafter extending its limits so as to include it, became a street of the city; a dedication to a public corporation not being lost by changes in the form of the corporate government.

2. SAME — STREET IMPROVEMENTS — CONTRACTS — VALIDITY.

A contractor for a street improvement cannot, before the letting of the contract, agree with one of the property owners, liable for a part of the cost thereof, to accept less than the amount of his liability, as the effect is to increase the price to the other persons liable for the cost; but the contractor may, after finishing the work, allow a discount to one person on the payment of his tax bill.

3. SAME — TAX BILLS — VALIDITY.

A tax bill for a street improvement issued to a contractor competent to contract for the work is not void merely because his partner was one of the two sureties on his contract required by the city charter.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Charles B. Kurtz against James H. Knapp and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Hayward & McLane, for appellant. Ward, Hadley & Neel, for respondents.

ELLISON, J.

This is an action to cancel a tax bill claimed to be a lien on plaintiff's property in Kansas City. The judgment in the trial court was for the defendants.

The first ground for its cancellation is that the sidewalk for which the tax was levied was not built on Prospect avenue, the street designated by the ordinance, but on plaintiff's private property. The facts are that the street called "Prospect Avenue" was formerly a county road 40 feet in width. It was widened to 80 feet, by taking 20 feet from the adjoining property on either side. The walk in this case was laid on this 20 feet; so, if it were true that the avenue had never in fact been widened, the walk would not be on the street as directed by the ordinance. But the fact is it was widened by the voluntary action of the parties owning the adjoining property, including this plaintiff. In 1897 he signed a written dedication, claiming therein $500 damages. The county court accepted it, conditioned that he (plaintiff) would accept $250, instead of $500. This the plaintiff did by receiving a county warrant and cashing it. The road has ever since been recognized as a public thoroughfare.

At the date of this dedication the street, at the point in controversy, was outside the city limits. The city was afterwards extended so as to include this point. The extension of the city limits over the road did not affect a prior dedication. "A dedication, either statutory or common law, to a public corporation, is not lost by changes in the form of the corporate government, nor by changes in its territorial boundaries. A dedication for the purpose of a public township road will not be lost to the public, if a town or city is built up and the road falls within its limits; nor will it be lost in cases where there is an extension of corporate limits so as to embrace county roads, nor where a village grows into a town, or a town into a city. ...