Meyer v. Bobb
| Decision Date | 03 November 1914 |
| Parties | ALFRED C. F. MEYER, Appellant, v. CLARA P. BOBB, Respondent |
| Court | Missouri Court of Appeals |
October 5, 1914, Argued and Submitted
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
Judgment reversed and cause remanded. (with directions).
Hickman P. Rodgers and Schulenburg & Diehm for appellant.
(1) The special tax bills made a prima-facie case for plaintiff on each count. Charter, City of St. Louis, Art. 6, sec. 25; Vieth v. Planet P. & F. Co., 64 Mo.App. 207. (2) (a) The action of the Board of Public Improvements in recommending the improvement and its secretary in transmitting same to the Municipal Assembly were in substantial, if not literal, compliance with the charter; and substantial compliance is all that the law requires. Cole v. Skrainka, 37 Mo.App. 427; 105 Mo. 303; Steffen v Fox, 56 Mo.App. 9; Sheehan v. Owen, 82 Mo. 458; Jaicks v. Merrell, 201 Mo. 91. (b) Every requirement of the charter is not mandatory; and to ignore a directory provision is not fatal to proceedings. Tarkio v Cooke, 120 Mo. 1; City of Rockville v. Merchant, 60 Mo.App. 365; McQuillin on Mun. Ord., sec. 116. (3) (a) The existence of a highway by prescription may be established by parol evidence of user for a period of ten years or more. Dowdend v. Kansas City, 156 Mo. 60. (b) And upon acceptance by the municipality it becomes a public street; and such acceptance may be express or implied. Benton v. City of St. Louis, 217 Mo. 687. (c) The city of St. Louis by its ordinance to improve Cooper street fifty feet wide accepted it as a street of that width. (d) The use of a road by the public under an attempted dedication is presumed to be co-extensive with the recorded location; and the limits of the road are not confined to the parts actually used. 1 Elliott on Roads and Streets (3 Ed.), sec. 193; 7 Central Law Journal (1878), p. 125; Pillsbury v. Brown, 82 Me. 480. (4) (a) Common-law dedications of highways are valid in this State. State v. Muir, 136 Mo.App. 118. (b) This is true of streets in the city of St. Louis. McGinnis v. St. Louis, 157 Mo. 191. (5) (a) John H. Bobb by his conduct in participating, as trustee, in the attempted dedication and afterwards acquiring outstanding interests in the intended portion of the highway, was estopped to assert title to it afterwards. (b) His knowledge of the defective dedication and silence on the subject when he knew the street was to be improved also worked an estoppel. Granite Bit. Pav. Co. v. Fleming, 251 Mo. 210. (c) And that estoppel binds his heirs, devisees and all those claiming through or under him. (6) If a part of Cooper street was not a lawful highway, the extent of respondents' remedy, if any, would have been a reduction in the amount of the tax bills. But, having failed to plead and prove facts entitling them to such reduction, and having sought to entirely defeat the bills, they are now entitled to no relief on that account. Niel v. Ridge, 220 Mo. 233.
T. J. Rowe for respondent;
David Goldsmith for respondents in Meyer v. Goldsmith, post.
(1) Since no error is assigned with respect to the pleadings, the evidence or the instructions, the judgment of the trial court should be affirmed, if it can be sustained on any reasonable theory. Jordan v. Davis, 172 Mo. 608; Crain v. Peterman, 200 Mo. 295; New York Life Ins. Co. v. McDearmon, 133 Mo.App. 671. (2) The special tax bills sued upon are invalid, if Cooper street was not fifty feet wide. Lorenz v. Armstrong, 3 Mo.App. 574; Carroll v. City of St. Louis, 4 Mo.App. 191; Spaulding v. Wesson, 115 Cal. 441; Mayor v. Hook, 62 Md. 371; In re Petition of Cheesebrough, 78 N.Y. 232; Hennessy v. City of St. Paul, 44 Minn. 306; Morse v. Stocker, 1 Allen 150; Charter of City of St. Louis, Art. 6, sec. 15. (3) The attempted dedication in question was invalid, because all the tenants in common, owning the property, did not join therein. City of St. Louis v. Laclede Gas Light Co., 96 Mo. 197; Marshall v. Anderson, 78 Mo. 85. (4) The judgment of the trial court is conclusive against the claim of prescription, since it is supported by substantial evidence. Bond & Stock Co. v. Houck, 213 Mo. 426; Brewing Co. v. St. Louis, 209 Mo. 600; Cobb v. Holloway, 129 Mo.App. 212. (5) There is no substantial evidence of any user, adverse or otherwise, of the strip of land in question; but, if the user shown in this case had extended beyond the thirty feet constituting Cooper street, it still would not have been an adverse user, such as is required for the purposes of a claim of prescription. Musick v. Barney, 49 Mo. 463; Heckerscher v. Cooper, 203 Mo. 293; Bauman v. Boeckler, 119 Mo. 199; State of Kansas v. Horn, 35 Kan. 717; Burnley v. Mullins, 86 Miss. 441; McKinney v. Duncan, 118 S.W. 685; Tutweiler v. Kendall, 133 Ala. 665; City of Ottawa v. Lentzer, 160 Ill. 516; Kirk v. Smith, 9 Wheat (U.S.) 241; Palmer v. City of Chicago, 248 Ill. 201. (6) The claim that John H. Bobb was estopped, by reason of his having joined in the attempted dedication, from asserting any claim to the strip in question, cannot be raised on this appeal, since the plat for that dedication is not before this court. Wack v. Railroad, 175 Mo.App. 128. (7) Nor was he estopped, since his grantors, John Letcher and Jacob J. Letcher, were not estopped. Indeed, the conveyance by said grantors to him of the strip was a repudiation of the attempted dedication. City of Chicago v. Drexel, 141 Ill. 89; Lightcap v. Town of North Jordan, 154 Ind. 43. (8) Nor is there ever room for any estoppel, as between the grantors and the public, in matters of dedication prior to the acceptance of the dedication. City of St. Louis v. St. Louis University. 88 Mo. 159; Field v. Manchester, 32 Mich. 279; Village of Vermont v. Miller, 161 Ill. 210; In re Opening of Beck Street, 44 N.Y.S. 1087; City of Galveston v. Williams, 69 Texas, 449; Town of Cambridge v. Cook, 97 Iowa 599. (9) Mr. Bobb was not estopped by silence. He was not silent; but, if he had been, no estoppel would have arisen. Perkinson v. Hoolan, 182 Mo. 189; McCormick v. Moore, 134 Mo.App. 680; Cox v. Mignery & Co., 126 Mo.App. 669; Dameron v. Jameson, 143 Mo. 491. Nor would an estoppel arising after the enactment of the ordinance for the improvement of Cooper street be of any avail. Hennessy v. City of St. Paul, 44 Minn. 307. (10) The ordinance for the improvement of Cooper street is invalid, because mandatory provisions of the charter of the city of St. Louis, in regard to the proceedings for its enactment, were not observed. Charter of City of St. Louis, Art. 6, sec. 14. (11) The letter of the secretary of the Board of Public Improvements, purporting to convey the reason of the board for adopting the ordinance, was not authorized. (a) The authority could be shown only by the records of the board, and does not appear therefrom. Fruin-Bambrick, etc., Co., v. Geist, 37 Mo.App. 512; Larned v. Briscoe, 62 Mich. 393; Kidson v. Bangor, 99 Maine, 139; Woerner's Revised Code of Ordinances, ch. 24, art. 1, secs. 1912, 1935; City of Belleville v. Miller, 257 Ill. 244; Sedalia ex rel. v. Scott, 104 Mo.App. 604; Eastland v. Fogo, 58 Wis. 271; Pelham v. Pelham Telephone Co., 131 Ga. 325. Nor does the secretary's testimony show any such authority. (12) There is no merit in the contention of the appellant, that the respondents were entitled to only a pro tanto reduction of the tax bills sued upon. (a) The ordinance for the improvement of Cooper street was invalid, and the special tax bills therefor were consequently wholly void. Ramsey v. Field, 115 Mo.App. 626; Hennessy v. City of St. Paul, 44 Minn. 307, 308; Spaulding v. Wesson, 115 Cal. 444. (b) If a special tax for a reduced amount could be levied for the improvement, the property assessed, as well as the amount of the assessment, would be different from those specified in the tax bills sued upon. The trial court would not have the power to determine the amount and property in this action, but new or amended tax bills would be necessary. Heman v. Farish, 97 Mo.App. 401; St. Louis v. Brinckwirth, 204 Mo. 297; Bank v. Manning, 133 Mo.App. 294; Charter of St. Louis, Art. 6, sec. 25; Paving Co. v. Peck, 186 Mo. 520. (c) And even if the trial court had possessed that power, it could not have exercised it, since the evidence would not have enabled it to determine either the amount or the property, and the burden of producing such evidence would have been upon the appellant. Haag v. Ward, 186 Mo. 349.
REYNOLDS
REYNOLDS, P. J.--This is an action to enforce three special tax bills, the bills issued by the city of St. Louis against defendant's property to plaintiff's assignor for paving that portion of Cooper street in the city of St. Louis lying between Old Manchester road on the south and Bischoff avenue on the north. The petition is in the ordinary form.
The amended answer upon which the case was tried admitted that the city of St. Louis, by authority of a certain ordinance had entered into a written contract with plaintiff's assignor for the improvement of the street, but avers that the ordinance was null and void and the Municipal Assembly without authority to pass it. First, because, being null and void, it would deprive defendant of the equal protection of the laws and deprive her of her property without due process of law, contrary to the amendments of the Constitution of the United States and to sections 20 and 30, article II, of the Constitution of this State. Setting out the first paragraph of section 14, article VI, of the Charter of the city of St. Louis, it is averred that in January, 1909, a public meeting of the Board of Public Improvements of the city of St. Louis was held to...
To continue reading
Request your trial