Municipal Securities Corp. v. Metropolitan Street Ry. Co.

• Citation: 196 S.W. 400,196 Mo. App. 518
• Decision Date: 11 June 1917
• Docket Number: No. 12527.,12527.
• Parties: MUNICIPAL SECURITIES CORP. v. METROPOLITAN STREET RY. CO. et al.
• Court: Court of Appeal of Missouri (US)

196 S.W. 400

196 Mo. App. 518

MUNICIPAL SECURITIES CORP. v. METROPOLITAN STREET RY. CO. et al.

No. 12527.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Rehearing Denied July 2, 1917.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by the Municipal Securities Corporation against the Metropolitan Street Railway Company and others. From a judgment for the plaintiff, defendants appeal. Affirmed.

Clyde Taylor, of Kansas City, for appellants. W. R. James, of Kansas City, for respondent.

BLAND, J.

This is a suit upon a paving tax bill issued against defendants' land. The case was tried upon an agreed statement of facts, the material part being as follows:

"It is agreed that upon the land so owned by the defendants, at the time said pavement was laid, and prior thereto and ever since said time, defendants maintained a car barn, a shop, etc., and that said defendants owned and operated on Southwest boulevard a double-track street railway, and maintained switches connecting their said property with the tracks in the street; that by the terms of the franchise ordinance from Kansas City, which was long prior to the special ordinance authorizing the improvement for which the tax bill in question was issued, it was the duty of the defendants to pave the spaces between the rails of its said switch tracks and for a space of 18 inches outside the tracks, and to maintain such pavement, and that the defendants did construct and maintain such pavement; that Ordinance No. 6255, authorizing the paving of Southwest boulevard, for which the tax bill in question was issued in part payment, specifically excepted the spaces required to be paved and maintained by defendants under its franchise ordinance, and the contractor who did the work for which said tax bill was issued, was not required by his contract to do, and he did not do, any work upon the spaces so required to be maintained by the defendants, and such yardage was not included in the total yardage laid by said contractor, but on the side of Southwest boulevard, opposite the said land of the defendants, did construct paving between the curb and a line distant 18 inches from the northwest rail of the tracks of defendant in said street. It is also agreed that the contractor did construct paving on the side of Southwest boulevard on which defendants' property is located, and abutting defendants' property, between the curb and a line 18 inches distant from the southeast rail of the tracks of defendants in said street, for a distance of 103 lineal feet; that defendants' property had a frontage of 257.7 feet upon Southwest boulevard; and that all of said frontage abuts on paving laid and maintained by defendants, save and except the 103 feet frontage mentioned above."

Defendants maintained a number of switch tracks leading into said car barn and shop, and in compliance with the requirements of their franchise paved between these tracks and 18 inches on both sides thereof, and as a result thereof 154.7 feet of defendants' total frontage of 257.7 feet was entirely paved, leaving 103 feet in front of defendants' property that was not paved by defendants, but by the paving contractor. It is to be borne in mind that the defendants did no paving whatever except that which was required by their franchise. Under these facts defendants claim that said 154.7 feet of their property in front of which they had already paved is not liable for this improvement. Defendants base this argument upon the claim that the city required them to do the paving that was done by them, and therefore that part of their property fronting on the part of the street paved by them should be exempt from any assessment for the cost of this improvement, and a number of cases are cited by defendants tending to support this contention. However, the trouble with this contention is that the city in a general sense did not require defendants to do the paving done by them, but such paving was done by reason of the requirement of defendants' franchise fixing the burden on them to pave between their tracks and 18 inches on each side thereof. This agreement to do this paving was a part of the consideration given by de...