Schneider Granite Co. v. Gast Realty & Investment Co.

• Decision Date: 24 March 1914
• Docket Number: No. 16439.,16439.
• Citation: 168 S.W. 687,259 Mo. 153
• Parties: SCHNEIDER GRANITE CO. v. GAST REALTY & INVESTMENT CO. et al.
• Court: Missouri Supreme Court

168 S.W. 687

259 Mo. 153

SCHNEIDER GRANITE CO. v. GAST REALTY & INVESTMENT CO. et al.

No. 16439.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

Rehearing Denied May 26, 1914.

Denied in Banc June 23, 1914.

1. MUNICIPAL CORPORATIONS (§ 450)—SPECIAL ASSESSMENTS—CHARTER PROVISIONS.

St. Louis Charter, art. 6, § 14, requires the assessment of one-fourth of the whole cost of grading streets on the property adjoining the improvement, and the assessment of the remaining three-fourths on the property in a district to be bounded by drawing a line midway between the street to be improved and the next parallel or converging street on either side of the improved street, provided that if the property is divided into lots the district line shall be so drawn as to include the entire depth of all of the lots fronting on the street to be improved. Held, that the assessment district is properly fixed as to streets open when the assessment is levied and apportioned, and is not invalid because other streets will be opened in the future between the next parallel street and the one improved, or because a street which formerly lay between the next parallel street and the one improved had been closed during the improvement.

2. CONSTITUTIONAL LAW (§ 290) — EMINENT DOMAIN (§ 61)—MUNICIPAL CORPORATIONS (§ 407) — DUE PROCESS OF LAW — TAKING PROPERTY WITHOUT COMPENSATION — ASSESSMENTS.

These provisions are not invalid as working a deprivation of property without due process of law in violation of Const. U. S. Amend. 14, § 1, and Const. art. 2, § 30; or as taking private property for a private use contrary to article 2, § 20.

3. MUNICIPAL CORPORATIONS (§ 450)—ASSESSMENT DISTRICTS — EFFECT OF PARTITION — "LOT."

The division of land into separate tracts for partition and the recording of a survey of the tracts as divided does not make the separate tracts, which varied from 4 to 44 acres, lots, within St. Louis Charter, art. 6, § 14, providing that the entire depth of lots abutting on streets being improved shall be included in the assessment district and that the term "lots" shall be held to mean lots as shown by recorded plats of divisions and subdivisions.

4. MUNICIPAL CORPORATIONS (§ 487) — SPECIAL ASSESSMENTS — PERSONS ENTITLED TO COMPLAIN.

An owner of land abutting on a street which was being improved, whose property was within the assessment district no matter how fixed, cannot complain of an error in the assessment which included more land in the district than properly belonged there for the error is to his advantage.

5. MUNICIPAL CORPORATIONS (§ 891) — SPECIAL ASSESSMENTS — APPROPRIATIONS BY MUNICIPALITY.

Where a city appropriated a large sum to defray assessments for street improvements on city property within the assessment district and the charter automatically fixed the assessment district, the city is not bound to pay the entire amount of the appropriation, where its share as subsequently apportioned was less than the amount appropriated.

6. MUNICIPAL CORPORATIONS (§ 458)—SPECIAL ASSESSMENTS—EXTENT OF SPECIAL ASSESSMENTS.

Where an ordinance, authorizing an improvement and providing that assessments should be made according to the city charter, appropriated a large sum to defray assessments against city property, the appropriation did not limit the amount for which special tax bills could be issued on private property to the difference between the total cost and the amount appropriated.

7. MUNICIPAL CORPORATIONS (§ 486)—SPECIAL ASSESSMENTS—NOTICE.

Notice of the issuance of a tax bill for street improvements is sufficient to authorize the contractor to enforce it against the property pursuant to St. Louis Charter, where, though it did not completely describe the property, it was sufficient to identify it.

8. MUNICIPAL CORPORATIONS (§ 486) — TAX BILLS—NOTICE.

Notice of the issuance of a tax bill for street improvements, when served upon the then owner of the land, is sufficient to entitle the contractor to enforce the special tax bill against a subsequent purchaser; such purchasers taking the property subject to assessments and not being entitled to additional notice.

9. MUNICIPAL CORPORATIONS (§ 485)—PUBLIC IMPROVEMENTS—SPECIAL ASSESSMENTS— TAX BILLS.

Irregularities in a special tax bill for street improvements, such as omissions in the description of the property benefited, may be cured by amendment.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the Schneider Granite Company against the Gast Realty & Investment Company and Emily Gast. From a judgment for plaintiff, defendants appeal. Affirmed.

This is a suit upon a special tax bill in the sum of $14,522.65 and interest, issued by the city of St. Louis to the plaintiff contractor and against the property of defendants, as in part payment for the improvement of that portion of Broadway street lying between a line about 285 feet south of Pelham avenue and Hornsby avenue in said city. Trial was had in the circuit court of the city of St. Louis, resulting in a judgment for plaintiff for the full amount with interest. Defendants have perfected an appeal to this court. By the St. Louis Charter, it is provided that special assessments for street improvement shall be levied, one-fourth against the land fronting upon or adjoining the improvement, and three-fourths proportionately against all the land lying within the benefit district to be fixed as provided by said charter. Said benefit district is established as follows:

"A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to be improved is divided into lots, the district line shall be drawn as to include the entire depth of all lots fronting on the street to be improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no parallel or converging street on either side of the street to be improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located. Provided that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of land lying between the streets to be improved and the district lines established as above specified, shall constitute the district aforesaid. * * * The word `lot' as used in this section, shall be held to mean the lots as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground, or lots so treated as one, shall be regarded as a lot for the purposes hereof." Charter of City of St. Louis, art. 6, § 14."

The property involved in the present tax bill is upon the west side of the improved street, having a frontage thereon of 1,083.88 feet and extending westward to a depth varying from 327 feet to approximately 493 feet. The nearest public street west of the improved street, and also west of the land involved in this tax bill, is Church road, which is approximately 986 feet west of Broadway at this place.

Appellants make no claim that the work of said improvement was not properly done as provided by the contract and specifications, but seek to defeat a recovery by reason of certain alleged irregularities in the fixing of the boundaries of the benefit district, in the issuance of the tax bill, and the giving notice of its issuance. The different defenses pleaded may be briefly stated as follows:

1. That the assessment district fixed by said city was illegal and improper and not in conformity with the provisions of the city charter in this:

(a) A portion of the western boundary of said benefit district was placed halfway between Broadway and Church road, whereas Church road was not a parallel or converging street to Broadway within the meaning of said charter. That in time this property will be intersected with other streets parallel and nearer Broadway; that if section 14 of article 6 of the Charter of the City of St. Louis, when correctly construed, authorizes the fixing of the western line of said district at the place it was in fact located in the instant case, then said charter provision is illegal and void because of being in violation of section 1, art. 14, of the Amendments to the Constitution of the United States and sections 20 and 30 of article 2 of the Constitution of Missouri. That said portion of the west boundary of said district should have been located "at a distance west of Broadway equal to the average distance of the district line on the east side of the improved street" as provided by the charter when there is no parallel or converging street on one side of the improved street. That if the western district line had been drawn a distance from Broadway equal to the average distance of the opposite boundary line it would have been much closer to Broadway and would have omitted from the assessment district a large portion of the property included in said tax bill.

(b) That the eastern boundary of...