Miller v. Anheuser

• Decision Date: 16 May 1876
• Citation: 2 Mo.App. 168
• Parties: JOHN C. MILLER, Plaintiff in Error, v. EBERHARD ANHEUSER, Defendant in Error.
• Court: Missouri Court of Appeals

2 Mo.App. 168

JOHN C. MILLER, Plaintiff in Error,

v.EBERHARD ANHEUSER, Defendant in Error.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. Where the city charter provides that the council shall construct sewers where they deem it necessary, the passage of an ordinance to construct a sewer is conclusive as to the necessity for the sewer.

2. The fact that a portion of the sewer connecting it with the main sewer runs through property of defendant not condemned for sewer purposes is no bar to a recovery on the special tax bill against defendant for the portion of the sewer built on that part of his premises which had been regularly condemned.

ERROR to St. Louis Circuit Court.

Reversed and remanded.Jecko & Hospes, for plaintiff in error, cited: New York & Harlem R. R. Co. v. Mayor of New York, 1 Hilt. 562; Mutham v. Sharp, 15 Barb. 193; Fay et al. v. Mayor of Boston, 15 Pick. 243; Young v. City of St. Louis, 47 Mo. 492; McCormick v. Patchin, 53 Mo. 33; Giboney v. City of Cape Girardeau, 58 Mo. 141.

Slayback & Haeussler, for defendant in error.

BAKEWELL, J., delivered the opinion of the court.

This is an action to subject certain property in the city of St. Louis to the lien of special tax bills, issued by the city of St. Louis, for the construction of a sewer, under authority of ordinances 8002 and 8060.

There are three counts in the petition, upon as many tax bills.

The answer admits that defendant owns and is in possession of the property sought to be charged, and denies all other material allegations of the petition, and then sets up as affirmative matter of defense that, by the charter of the city, of March 4, 1870, it is provided (art. 8, sec. 12) that the City Council shall cause sewers to be constructed in any district wherever a majority of the property-holders resident therein shall petition therefor; that in May and June, 1872, among other property-holders who resided within the alleged Arsenal Sewer District No. 5, were James Ruane, the defendant, C. Stone, and B. Heil; that in May, 1872, the ordinance set up in the petition as that under which said sewer was constructed was introduced into the City Council, on petition of said Ruane, one S. B. Kellogg, and one David Nicholson, and no others, of whom two never resided in the said sewer district; that said ordinance was passed in June; that a majority of property-holders resident in said contemplated sewer district never signed and consented to said petition, and that, therefore, said ordinance is void; that said sewer was not necessary for sanitary or other purposes, and, as constructed, is of no use to defendant, his property, or other residents in said sewer district, of all which plaintiff had notice; that said sewer, as constructed, is not upon a public highway, as required by law, but on the private property of defendant. The same answer is made to each several count.

The reply denies the new matter in the answer. On the trial it was admitted that the tax bills filed with the petition were genuine, and duly signed by the city engineer, comptroller, and special tax clerk, and that defendant, when the work was done, and since, was and is the owner in fee of one undivided half of the property described in the bills. The bills were offered in evidence, and plaintiff rested.

Defendant then offered evidence tending to prove all the affirmative matter set up in his answer, and that the sewer was of no benefit to defendant or his property, and that plaintiff had knowledge of all these facts. Plaintiff objected to all this evidence as incompetent, irrelevant, and immaterial. The objection was overruled, and plaintiff excepted. It was then agreed that the facts so offered in evidence should be considered as proved.

Plaintiff then admitted that thirty-one and eighty-three one-hundredths lineal feet of said sewer is on private property of defendant, and that the sewer would be useless without that part, and that said property has never been condemned, nor has compensation been offered for it; and that this part of the sewer is described in two of the bills sued on, numbered 4,109 and 4,117, and described in second and third counts of the petition, and is a connecting part, lying between Arsenal street and the parts of the sewer charged for in the first count. The public sewer is on Arsenal street, and the district sewer charged for in this suit is in the alley running south from Crittenden towards Arsenal street. It was admitted that the private property in question, through which this sewer was run to reach the public sewer on Arsenal street, lies between the end of the alley and Arsenal street. It was also admitted that the city engineer, unless authorized by the city charter and ordinances 8,002 and 8,060, had no authority to cause said sewer to be constructed, or to make the contract with plaintiff set out in the petition. The two ordinances were then put in by consent, and it was admitted by defendant...