Lansdown v. Kierns

• Citation: 260 S.W. 88,303 Mo. 75
• Decision Date: 07 March 1924
• Docket Number: No. 23990.,23990.
• Parties: LANSDOWN v. KIERNS et al.
• Court: United States State Supreme Court of Missouri

260 S.W. 88

303 Mo. 75

LANSDOWN v. KIERNS et al.

No. 23990.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Suit by Bailey W. Lansdown against Thomas Kierns and another. Judgment for plaintiff, and defendant named appeals. Reversed, and remanded with directions.

T. S. Mosby and D. F. Calfee, both of Jefferson City, for appellant.

Dumm & Cook and W. C. Irwin, all of Jefferson City, for respondent.

SMALL, C. I.

Suit in equity to cancel district sewer tax bill against lots 1 and 2, block 2, General Realty Company's subdivision to Jefferson City, Mo. Judgment for plaintiff, from which defendant, the contractor, appealed.

The petition, among other things, alleged: That sewer district No. 26, in which plaintiff's property is located, was established by ordinance of said city No. 2013, passed October 8, 1920. That thereafter, on the same day, October 8, 1920, another ordinance was passed by said city, No. 2014, for the construction of a district sewer in said district No. 26, which ordinance "declared it to be necessary, for sanitary purposes and for the health and convenience of the residents of said city," that sewers be constructed in said district No. 26, and ordered the city engineer of said city to prepare plans and specifications and an estimate of the cost of the work, to advertise for bids for the doing thereof, and that the work should be awarded by the city council to the lowest and best bidder, and that the mayor of said city was authorized to enter into contract with the successful bidder. That the work should be done under the supervision of the city engineer and when completed he should compute the cost and apportion it against each lot in the district in proportion to the area of the whole district exclusive of highways. That, in pursuance of said ordinance No. 2014, the city engineer prepared plans and specifications and an estimate of the cost of the work and filed same in the office of the clerk. That the engineer advertised for bids for, and on November 20, 1920, the city council accepted the bid of defendant Thomas Kierns, and on the same day said city, through the mayor, entered into a contract with defendant for the construction of said sewer, according to the plans and specifications, the bid of defendant being $11,226.27. That defendant undertook the construction of said sewer and on February 7, 1921, the city engineer reported to the city council that said sewer had been completed according to the contract, plans, and specifications, and that the total cost of said work amounted to the sum of $7,544, which report was adopted and the work of constructing said sewer accepted by the city council by resolution of February 11, 1921. That said city engineer apportioned the cost against the lots in the district in proportion to the area of the whole district, exclusive of highways, and on February 11, 1921, the city council by ordinance levied a special tax against each lot in said district. On February 14, 1921, the city clerk issued special tax bills against each tract in the district, which were duly signed by the mayor and delivered to defendant Kierns in payment for the construction of said sewer. The one against the plaintiff's property was for $385.18.

The petition further alleged that said tax bills were a cloud on plaintiff's title and were void for the following reasons: That said sewer district No. 26 was not necessary for sanitary purposes nor for the health or convenience of the residents of said city, and that the property owners within said district already had ample facilities. That said sewer was laid across private property without consent of owners or condemnation. That a large part of said sewer had been dug up and cannot be used for sewer or any purpose. That a large part of said sewer is laid on solid rock, contrary to the plans and specifications. That the joints of said sewer are not cemented as required by the plans and specifications, and for that reason said sewer was useless. That the manholes are not constructed of the material or in the manner to comply with the plans and specifications. That no lamp holes are constructed at any point in said sewer as required by the plans and specifications. That the cost of said sewer is excessive, prohibitive, is a confiscation of the plaintiff's property and the taking of the plaintiff's property without due process of law. That said sewer cannot be used by plaintiff, nor by any of the property owners in said district. That the plans and specifications for the construction of said sewer were violated in many other respects, and the construction of said sewer has not been in any respect in substantial compliance with the plans and specifications.

The prayer of the petition is that said special tax bill be canceled, set aside, and for naught held, and for all other and proper relief in the premises. During the trial the court permitted the plaintiff to amend his petition by inserting the following paragraph:

"That the ordinance of the city of Jefferson, levying and assessing the tax for the payment of said sewer and the tax bills issued under said ordinance, is invalid and void as being violative of the Fourteenth Amendment to the Constitution of the United States, in that said tax bills are grossly unequal."

Defendant first filed a general demurrer to the petition, which was overruled. Defendant then answered, admitting the passage of said ordinances for said sewer and all the proceedings thereunder, including the issue of the taxbills and the holding thereof by the defendant, as alleged in the petition. Said answer further asserted the validity of said tax bills, and alleged that defendant had fully complied with the plans and specifications in doing said work, and specifically denied each charge stated in the petition as a reason why said tax bills were invalid. The prayer of the answer was that plaintiffs petition be dismissed.

The evidence showed that said sewer district No. 26 included certain real estate on each side of West Main street, from Hub street west for a distance of about 1,300 feet; that all the lots on the north side were in said blocks 1 and 2 of the General Realty Company's subdivision, and were each 50 feet front on said Main street, and extended north 370 feet to a 30-foot alley. The lots on the south side were of varying frontage, the least being 47½ feet and the greatest 150 feet, and they ran south for a distance of 194 feet. There is evidence also that there was an alley at the south end of these lots. Main street runs east and west on the top of a ridge, and the land slopes sharply to the north and south, but there is perhaps 100 feet, on an average, of the front part of the lots on the north side of the street which is on or above grade of the street and can be drained by the district sewer, but the remainder or rear 270 feet slopes north rapidly toward a ravine, and is so far below grade that it cannot be drained by said sewer. It is in evidence that said lots on the south side of Main street slope south rapidly into a ravine, and from all that appears in the record said sewer may not be capable of draining as much in area of said lots as of the lots on the north side of said street. There was no topographical survey or definite evidence on the subject. There are quite a number of houses on each side of said Main street, but the exact number is not shown.

Said district sewer on Main street is from 6 to 8 feet below the grade of the street and all the houses, including the basements, on the front part of all the lots on each side of said street may be drained by it. Prior to the construction of said district sewer the proprietors of said blocks 1 and 2 in said General Realty Company's subdivision, at their own expense, constructed a sewer in said Main street, which connected with a district sewer on the east. This sewer was 2½ to 4 feet below the grade of the street. When the lots in said blocks 1 and 2 were sold, there was about $125 added to the purchase price to help pay for this sewer. Owners of property on the south side of said Main Street were also permitted by the parties constructing it to connect with it by paying their proportionate share of its cost. A number of the lots on the south side, however, were not able to use said sewer at all, because it was not located at sufficient depth in the street. A few of the lots on the north side could drain their dwellings, including the basements, into this sewer, but the plaintiff and perhaps the majority of the lot owners on the north side could only drain their dwellings from the first floor up, and could not drain their basements into said sewer. This sewer was constructed by C. W. Thomas, who was then mayor of said city, and who was also one of the owners, if not the sole owner, of said blocks 1 and 2, under a resolution passed by the city council of said city, which read as follows:

"Resolved, that C. W. Thomas be and is hereby given permission to connect his property on West Main street to the sewer in sewer district No. 15, and that said connections be at the expense of the said C. W. Thomas, and that, should a sewer district be ordered wherein said property is located, the said C. W. Thomas agrees riot to protest against said sewer district being established."

It was constructed at the expense of said Thomas under the directions of the city engineer. It was sometimes flushed by the city employees, but no ordinance or resolution was ever passed taking it over as a public or district sewer. This sewer was an 8-inch vitrified clay pipe, the same as the district sewer in question. There is evidence in the record that before the' district sewer was constructed most of the sewage from the houses on the south side ran out onto the ground into the ravine, also that the sewers from some or all of the buildings on the north side emptied onto the surface in or near...