Simpson v. Kansas City

• Decision Date: 07 October 1893
• Citation: 34 P. 406,52 Kan. 88
• Parties: S. N. SIMPSON et al. v. THE CITY OF KANSAS CITY et al
• Court: Kansas Supreme Court

34 P. 406

52 Kan. 88

S. N. SIMPSON et al. v. THE CITY OF KANSAS CITY et al

Supreme Court of Kansas

October 7, 1893

Original Proceeding in Mandamus.

THE opinion herein, filed October 7, 1893, contains a sufficient statement of the case.

W. S Carroll, for plaintiffs.

Jas. M Rees, and K. P. Snyder, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an action to compel the mayor and councilmen of the city of Kansas City to reapportion the costs of grading Seventh street, from Minnesota avenue to Euclid avenue. In May, 1887, a sufficient petition was presented to the mayor and councilmen of the city of Kansas City, in this state, for the grading of a part of Seventh street at the cost of the abutting property owners, as provided in § 4, chapter 99, Laws of 1887. (Gen. Stat. of 1889, P 557. On September 22, 1887, an ordinance was duly passed, ordering the improvement as prayed for. The ordinance was properly published the same day, and the street graded in accordance therewith. The estimated cost of the work was $ 18,711.70, but the actual cost was $ 15,950.51. It was apportioned upon each block separately, according to the appraised value of the lots contained in each block. Notices were served upon all the owners of the abutting property on the 10th of January, 1888, which notice contained the number of the lot and the block, the nature of the improvement, and the amount of special assessment made against each lot, and that the same could be paid to the city treasurer on or before 30 days thereafter, otherwise it would be collected in 10 annual installments, with interest at the rate of 6 per cent. per annum; and like notice was made out and served on the 25th day of August, 1888, requiring payment for such special improvement to be made on or before September 27, 1888. Many of the lot owners paid their assessments in full, and other lot owners have paid the assessments upon their property, from year to year, without objection. At the time of the making the assessment and apportioning the same upon the property, it was done in manner and form as the law was then interpreted by the city officials, and no objection was made to such assessment or to the manner thereof by either of the plaintiffs, but they then acquiesced in the assessment and the manner of collecting the same. They failed and neglected to appeal from the assessment, or to enjoin the same, or in any manner to interfere, until the demand for the reapportionment, in August, 1891, followed by the commencement of this action, on August 22, 1892.

The expense of the improvement should have been assessed against the lots and parcels of land abutting on the part of the street so improved, and the part so improved ought not to have been divided into blocks, and each block made liable for the improvement in front thereof. (Simpson v. Kansas City, 46 Kan. 438, 26 P. 721.) The assessment was therefore irregular. The writ of ma...