Owen v. City of Branson
| Decision Date | 01 October 1957 |
| Docket Number | No. 7592,7592 |
| Citation | 305 S.W.2d 492 |
| Parties | Jim OWEN, Plaintiff-Appellant, v. CITY of BRANSON, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
A. H. Blunk, Forsyth, Rogers & Rogers, Gainesville, for plaintiff-appellant.
Clay Cantwell, Branson, Robert L. Gideon, Forsyth, for defendant-respondent.
Plaintiff-appellant, Owen, brought this suit to enjoin the enforcement of ordinance number 265 of the City of Branson, which ordinance provides for an annual "license or wharfage tax" of $1 per front foot on all wharves or docks engaged in the loading, unloading, or repairing of boats or other types of water craft, which such wharves or docks are connected with and abutting upon city property. From an adverse judgment plaintiff has appealed.
The petition attacks the validity of the ordinance because (a) the operation of a boat dock is not one of the things authorized to be licensed and taxed (see Section 94.270, RSMo 1949, V.A.M.S., as limited by Section 71.610); (b) the business is not within the city limits; (c) the ordinance is uncertain and indefinite, confiscatory, not uniform, and provides for the licensing of owner as well as operator. The petition then specifically pleads that theretofore a suit was filed by plaintiff (now defendant-respondent) against Owen and a decree was rendered in said suit giving Owen the right of ingress and egress across the property of the city to the boat docks which the city now (by the ordinance in question seeks to charge with a license fee.
The answer of the city charges that Owen (and other parties not now in the case) has for a long time operated a wharf or boat dock on the lake front and on land dedicated as a public street and belonging to the city, without right or authority. That Owen ought to be estopped from maintaining this action because he comes into court with unclean hands by reason of the fact that he, while acting as mayor of the city, fraudulently procured the passage of and signed two ordinances giving to himself a perpetual lease on 200 feet of Lake Avenue, a city street. The answer then pleads that Owen and the city were parties to a previous suit involving the wharf or boat dock. That in such suit it was decreed that the city had power and authority to levy and collect a wharfage license or tax. That judgment in such case was entered by stipulation of the parties. That plaintiff, Owen, has wrongfully breached the agreement reached in such stipulation (and reduced to judgment), that he cannot take advantage of his own wrong, and that he is now estopped from maintaining this action or assaulting and attacking the ordinance by virtue of his conduct and by reason of the stipulation and judgment so referred to.
Lake Taneycomo, which slouches in wandering course through the valleys and below the bluffs of what is called the Shephard of the Hills country, is formed by a dam across White River, a navigable stream. Branson, a city of the fourth class, sits on the west bank of Lake Taneycomo and has control of a dedicated strip of ground called Lake Avenue, which property extends for approximately 700 feet along the water edge of the lake. The control of the water surface of the lake is in the War Department. It is conceded that permits for the anchoring of docks and wharves are issued by the War Department only upon and after consent of the adjoining riparian owners.
The center of the strip known as Lake Avenue is paved and used for street purposes. One section of the shore line is somewhat irregular, and the space between the street pavement and the water's edge varies with the meander of the shore line and the height of the water. A portion of the shore line on Lake Avenue, however, is riprapped with stone and concrete so as to make a sort of landing which slopes off the street, out and down to and under the surface of the water. Upon the waters of the lake and along and off this shore line are several establishments, locally called boat docks, where the needs and pleasures of hopeful fishermen are served in the form of rental boats, bait, fishing tackle, and other things dear to the heart of piscatorial practitioners. Also stalls are rented for the housing of private boats. One of these establishments is owned by the plaintiff, Owen, and is known as Fisherman's Dock.
Fisherman's Dock is 120 feet long, riding a few feet off the shore line at the approximate place where plaintiff was originally given a perpetual easement by ordinances subsequently declared void (of this more later). Approximately half of this length is alongside the stone riprap or landing. The structure is in reality a long building, a floored and roofed raft, resting on floating oil barrels. It is moored in place by cables fore and aft, which cables run out from the floating dock upon and over a portion of Lake Avenue and are attached to trees. At least one of these cables lies across the pavement, where it can be crossed by cars, but is subject to being raised as the height of the water increases and pulls the cable taut and up. Thus the dock sits along-side the bank and landing, neither a part of the land nor free from it, but, like a tethered turtle, rising and falling with the flux and ebb of the waters of Lake Taneycomo, and rocking gently in rhythm with waves made by passing motorboats. Other than the mooring cables, the sole physical connection with the land is a walkway or gangplank, one end of which is attached to the deck of the dock and the other of which rests upon (but is not attached to) the sloping stone pavement. This gangplank thrusts out on terra firma approximately six to eight feet, depending, of course, upon the varying water level of the lake and whether the dock is riding close to shore or out from it. Such gangplank is the umbilical cord which carries all of the business from the shore onto the dock, and the actual business with the customer, at least theoretically, is done on the floor of the dock and beyond the city limits, which stop at the water's edge. There is, however, evidence that at least upon occasions boats are stacked out on the lake shore; and beyond the rip-rapped portion of the bank, near the opposite end of the structure, the bank curves outward, thus leaving considerable space on Lake Avenue between the pavement and the bank. This space the owner of the dock inferentially appropriated by the maintenance of a sign in rather large letters, "Fisherman's Dock," and above it the words, "Free Parking."
In the year 1936 the City of Branson granted to plaintiff, Owen, the right to build a wharf at a designated point on Lake Avenue, and a "perpetual easement" on 150 feet of lake front "for wharf use and construction." In the year 1941 the city granted to Owen an additional 50 feet for such purpose. The grant was in this instance described as "an irrevocable perpetual easement * * * for wharfage use and construction." Owen was mayor of the city at the time of the passage of these ordinances and signed them as such. With such ordinances in existence, he was able to procure permits from the War Department for maintenance of the dock or wharf, which he did construct and thereafter maintain.
Sometime thereafter the city brought suit against Owen, and this is the suit referred to in the pleadings of both parties. Eventually, sometime prior to June 27, 1955, the parties got together and entered into a stipulation for a judgment whereby all rights of the parties in reference to the situation were settled and declared. In this stipulation the parties announced that a full and complete settlement had been effected. Such stipulation, which went into judgment, declared that the City of Branson is the owner and in control of Lake Avenue and that Lake Avenue extends to the water's edge or shore line of Lake Taneycomo. That the city has the use of said Lake Avenue for street purposes, and defendants (including Owen) have no title or interest in Lake Avenue other than that employed by the general public. That the defendants (including Owen) have "boat docks, fishing facilities, and wharves" anchored and attached to the shore line on Lake Avenue, and that the defendants have the right of ingress and egress to said "docks, wharves, and fishing facilities" for themselves, their agents, servants, employees, and the general public. It was adjudged that defendants (including Owen) were enjoined from interfering with the use of Lake Avenue by the city for public purposes. That defendant Owen had, by permission of the War Department, the right to have a boat dock and fishing facilities at said place, and the City of Branson was enjoined from interfering with the right of ingress and egress of the owner of said dock, with agents, servants, employees, and the general public, to and from the facilities so operated. It was then adjudged that the ordinances which theretofore had granted a perpetual lease on the lands were declared to be void and illegal. The judgment in words and figures then provided as follows:
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