Neil v. Ridge

• Decision Date: 18 May 1909
• Citation: 119 S.W. 619,220 Mo. 233
• Parties: ROBERT NEIL v. ISAAC M. RIDGE et al., Appellants
• Court: Missouri Supreme Court

119 S.W. 619

220 Mo. 233

ROBERT NEIL v. ISAAC M. RIDGE et al., Appellants

Supreme Court of Missouri, Second Division

May 18, 1909

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellants.

(1) It was error not to assess a portion of the cost of the work of constructing the sewers in question against the land of the Kansas City Belt Railway Company lying within the sewer district. Heman Construction Co. v. Railroad, 206 Mo. 172. (2) The above constituted a failure of the board of public works to make an apportionment of the cost of the work as required by the charter of Kansas City, and the taxbills are therefore void. Sec. 10, art. IX, charter of Kansas City; Dollar Savings Bank v. Ridge, 62 Mo.App. 324; Menefee v. Bell, 62 Mo.App. 659; McQuiddy v Vineyard, 60 Mo.App. 610. The foregoing cases approved Dollar Savings Bank v. Ridge, 183 Mo. 506. (3) The referee and the circuit court erred in allowing interest on the taxbill sued on from the date of issue, when the referee found that the bills were excessive by $ 1,408.60 on account of too large an allowance for rock excavation. In view, however, of the fact that the bills are void for the two reasons above mentioned, it is not necessary at this time to argue this proposition.

Arthur Miller and Karnes, New & Krauthoff for respondent.

(1) Plaintiff contends that under the Kansas City charter the right of way should not have been included in the assessment. (a) The charter of Kansas City, with reference to the assessment of the cost of the construction of sewers, does not include the right of way of a railroad; (b) Railroad rights of way are expressly excluded by the charter of Kansas City from any assessment for the cost of the construction of a sewer. Charter of Kansas City, sec. 10, art. 9; Kansas City to use v. Swope, 79 Mo. 446; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Independence v. Gates, 110 Mo. 380; Inh. of Houstonia v. Grubb, 80 Mo.App. 433; Nevada to use v. Eddy, 123 Mo. 546. Unless there is a provision in the charter of Kansas City authorizing the issuance of a taxbill against a railroad right of way for the cost of constructing a sewer, the right of way is not liable to be assessed. It must be recalled this is not a question of exemption from liability; it is a question of whether the charter makes the railway right of way liable. Plaintiff contends that the language of the Kansas City, charter, to-wit, "against the lots of land in the district," is not sufficient to include a railroad right of way, and that the term "lots of land" does not apply to a railroad right of way in a city. Buncombe Co. Commrs. v. Tommey, 115 U.S. 122. A railroad right of way in a street cannot come within the term lot. Railroad v. Capital Paving & Cons. Co., 24 Ind.App. 114; Railroad v. Winnebago, 89 Wis. 435. It has been held in a great many cases that a railroad is a public highway. Brown v. Railroad, 137 Mo. 537; McLucas v. Railroad, 93 N.W. 928; Railroad v. Sutor, 56 Tex. 496; Davidson v. Ramsey Co. Commrs., 18 Minn. 482; Sharpless v. Philadelphia, 21 Pa. 147. (2) The failure of the board of public works to assess a portion of the cost of the work of constructing the sewers in question against the land of Kansas City Belt Railway Company lying within the sewer district, does not make the taxbills sued on in this cause void in toto. The Kansas City Belt Railway Company is not a party to this action. This is not a suit on the taxbills against that company. This is an action against a property-owner whose property is in the district, and which property is not a portion of the right of way. Defendants in the case at bar have no right to complain of the failure of the board of public works to include in the apportionment the property of the Kansas City Belt Railway Company, except in so far as such failure may have increased the amount of the taxbills issued against the property of defendants. This being the only tenable contention of defendants, the whole matter is remedied by having a judgment entered on the taxbill for the proper amount thereof. Neenan v. Smith, 60 Mo. 292; Bank v. Arnoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo. 318; Farrar v. St. Louis, 80 Mo. 379; Johnson v. Duer, 115 Mo. 366; St. Joseph ex rel. v. Wilshire, 47 Mo.App. 132; Creamer v. McCune, 7 Mo.App. 91; City of Boonville ex rel. v. Rogers, 125 Mo.App. 142; St. Joseph v. Dillon, 61 Mo.App. 317; Quest v. Johnson, 58 Mo.App. 54. The cases cited by defendants have no application to the facts of the case at bar. In Dollar Savings Bank v. Ridge, 62 Mo.App. 324, there was no computation at all, nor any apportionment of the cost. In Menefee v. Bell, 62 Mo.App. 659, the taxbill was held valid. In McQuiddy v. Vineyard, 60 Mo.App. 610, there was no apportionment by the board of public works. In Dollar Savings Bank v. Ridge, 183 Mo. 506, the taxbills sued on were held valid, and the case of McQuiddy v. Vineyard and Dollar Savings Bank v. Ridge were only cited to the point that an ordinance providing for the construction of a sewer was not invalid because adopted at a special meeting of the city council, which it was claimed had not been legally called. The question now under consideration was not even mooted, much less decided. (3) The fact that the taxbills issued and sued on in the case at bar may have been for an excessive amount, does not prevent the holder of the taxbill recovering interest on the proper amount from the date of the issue of the taxbill. Neenan v. Smith, 60 Mo. 292. In the authorities cited in point 2 of this brief, the doctrine has been generally recognized that a taxbill issued for an excessive amount was not void in toto; that the correct amount of the taxbill could be ascertained and judgment rendered for this amount. In none of these cases was it contended by the eminent counsel representing the parties that interest on the taxbill as corrected would only run from the date of the judgment thereon. The common opinion of the legal profession is very good evidence of what the law is. Venable v. Railroad, 112 Mo. 125; Barber Asphalt Paving Co. v. Meservey, 103 Mo.App. 186; Steinhauser v. Spraul, 127 Mo. 561; Verdin v. St. Louis, 131 Mo. 125; Watson v. Alderson, 146 Mo. 351; Fears v. Riley, 148 Mo. 64; Westerman v. Supreme Lodge. 196 Mo. 709; Hale v. Stimson, 196 Mo. 164; Donnell v. Wright, 199 Mo. 316.

OPINION

FOX, J.

This cause is now presented to this court by appeal upon the part of the defendants from a judgment of the circuit court of Jackson county, in favor of the plaintiff upon certain taxbills issued for the work of constructing sewers in sewer district No. 61, in Kansas City, Jackson county, Missouri. The bills aggregate $ 4,487.50.

The sufficiency of the petition upon these taxbills is not challenged, hence it is not essential that we burden this statement with a reproduction of it.

The answer of the defendants, which was filed on June 18, 1901, was, first, a general denial of the allegations in the petition. Then follows the new matter in the answer, setting up other defenses. Such new matter is thus stated in the answer:

"Further answering plaintiff's petition and each and every count thereof, these defendants say that it is and was provided by the charter of Kansas City, Missouri, by section 10 of article 9 thereof, that the cost of district sewers shall be by the board of public works apportioned and charged against the lots of land in the district exclusive of the improvements and in the proportion that their respective areas bear to the area of the whole district exclusive of the streets, avenues, alleys and public highways; but that the pretended taxbills issued for the work done by said construction company, under said alleged Ordinance No. 8512, are not so apportioned and are not issued against all of the property lying within the said district, and that, among other property exempted from the lien of the taxbills so issued, is a large area of land or lots lying within said pretended Sewer District No. 61, belonging to the Kansas City Belt Railway Company, which said land owned by said railway company was omitted altogether from the assessment by the board of public works against the property chargeable with the cost of said sewers; that, by reason of such omissions, neglect and failure of the said board of public works so to assess such land as aforesaid, the amount of the said special bills charged against each and every of the lots and parcels of the land of these defendants, has been illegally and wrongfully increased beyond the sums and amounts authorized by the said charter of Kansas City, and in violation thereof.

"Also the construction company is allowed in said pretended final estimate (for the taxbills) the sum of $ 2,817.60 for rock excavation, although in fact said Construction Company did not excavate 1408.8 cubic yards of rock, as shown in said pretended final estimate, and did not excavate solid rock in excess of five hundred cubic yards, and the price of excavating per cubic yard, to-wit, $ 2, is largely in excess of a reasonable price therefor."

On April 15, 1902, and during the January term, 1902, the plaintiff filed its motion for an order of the court to refer the cause to referee, which order was duly made, and the cause referred to the Hon. Edward P. Gates, to hear the evidence and report the evidence to the court, together with his findings of facts and conclusions of law. The evidence was taken by the referee and on the 22d day of June, 1904, the said Edward P. Gates, referee, reported his findings of facts and conclusions of law to the circuit court of Jackson county, Missouri, at Kansas City.

There was no dispute about the facts. The computation of the cost of...