South Highland Land & Improvement Co. v. Kansas City
| Decision Date | 04 March 1903 |
| Citation | 72 S.W. 944,172 Mo. 523 |
| Parties | SOUTH HIGHLAND LAND & IMPROVEMENT COMPANY, Appellant, v. KANSAS CITY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Cook & Gossett for appellant.
(1) This sewer serves one-fourth in area of the entire city; its need is imperative for the public health; it is over a mile long and it is an extension -- the lower end of a sewer already declared to be and established and built as a public sewer. The two together necessarily constitute one great public sewer. The extension of a sewer (or artificial river) towards its final receptacle, like a natural river to the sea, both being for drainage, can not (as a natural fact consequently as logical and irresistible conclusion of law) be any less in character or public nature than any section above it of the whole of which it is a part. It can not be contended that the council could build a sewer in each city block and pay for it out of the general revenue fund simply by passing an ordinance for each of such calling it a public sewer. No more can it call a "public" sewer a "district" or "joint district" sewer and compel payment by special assessment. St. Louis v Heizeberg, 141 Mo. 375; Hill v. Swingley, 159 Mo. 45. If the provisions of section 11, article 8, of the charter were intended to give the city this power, it is unconstitutional as depriving of his day in court him whose property is so specially assessed to build a "public" sewer under name of a "joint district" sewer. Abbott v. Linderbower, 42 Mo 162. While it may pass conclusively upon the "size, character and purpose" of a sewer, just as it may pass conclusively upon the expediency of a district sewer, as in case of Johnson v. Duer, 115 Mo. 366; yet it could not legally make special assessments to pay for a sewer without an outlet, or for a sidewalk where there is no population to use it, or for its construction of precious metals. Its ordinances must be reasonable and not subterfuges. Corrigan v. Gage, 68 Mo. 541; Kansas City v. Richards, 34 Mo.App. 276; Copeland v. St. Joseph, 126 Mo. 417; Skinker v. Herman, 148 Mo. 365; Herman v. Allen, 156 Mo. 544. (2) The proposed sewer is to be constructed to empty and have its end upon filled, i. e., accreted land in possession of a private person. Presumptively such possession is rightful. Such a sewer is a nuisance and wrongful and the city has no power to tax for such purpose. Edmondson v. Moberly, 98 Mo. 523; Schoen v. Kansas City, 65 Mo. 134; St. Joseph v. Wilshire, 47 Mo. 125.
R. J. Ingraham and Clarence S. Palmer for respondents.
(1) It can be no objection that a part of this district may have been included in other joint districts. In the valley along the course of this sewer, other smaller valleys may and do enter, and if some of these joint district sewers had been constructed to embrace different district sewers, they might be in the drainage of these smaller valleys. The exercise of the authority of the city in these cases does not deprive it from meeting new conditions as they arise. The exercise of the power to pave a street does not deprive the city authorities of the power of having it repaved, although both paving and repaving are assessed against the property fronting on the street. McCormack v. Patchin, 53 Mo. 33. And the case of the sewer is still stronger, because in the case of paving a street, it is the exercise of authority to do over again, the same thing which has been done before, while in the case of combining sewer districts into joint sewer districts, there is a different grouping of the districts according to the particular territory to be drained, and all subject to the just limitation that no district can be included in a joint sewer district which is not in the same drainage area in which a sewer is to be built. (2) The objection that beyond the mouth of the sewer the Mississippi river has partially been filled, can constitute no objection to the building of the sewer in question. There is no allegation that the condition is such that a nuisance will be created by the construction of the sewer. It has been held by this court in the case of Johnson v. Duer, 115 Mo. 366, that where a part of a sewer was actually built upon private land, it would constitute no defense to the taxbills for the portion of the sewer built upon public property. If a nuisance is ever caused it will be the duty of the city, of course, to abate the nuisance, but in this case, all of the sewer is built upon public property, the outlet was in the bank of the Missouri river at the time the Santa Fe sewer, now discharging at that point, was constructed. The ordinance shows that the entire course of this portion of the sewer is upon Santa Fe street, and the accretions opposite the end of the street would belong to the city and not to the private property-owner. Tatum v. St. Louis, 125 Mo. 647; Whyte v. St. Louis, 153 Mo. 80; Benne v. Miller, 149 Mo. 228; De Lassus v. Faherty, 164 Mo. 361.
OPINIONIn Banc
-- This is a suit in equity to enjoin the defendant city and its officers from letting a contract to construct a joint district sewer. The cause was submitted to the court upon an agreed statement of facts in substance as follows:
The common council of the city passed an ordinance, No. 16253, entitled, "An ordinance to establish a joint sewer district composed of the following sewer districts [specifying 105 in number] and to construct a joint district sewer therein." The ordinance describes the district by metes and bounds. It embraces 4,200 acres, which is shown to be one-fourth of the area of the city. The whole 4,200 acres are embraced in the same natural drainage area of the valley and watercourse in which the proposed joint district sewer is to be built.
In many of the 105 sewer districts named, sewers have been constructed and paid for through special taxbills, and thirty-five of these are embraced in joint sewer districts composed of two or more districts, all of which are to drain into the joint district sewer proposed to be constructed under the ordinance in question.
The outlet of the proposed sewer is the outlet of what is designated in the record as the Santa Fe Street sewer, whose outlet is, or was when constructed, the Missouri river, but since its construction the river at that point has "been partially filled by a land reclamation company for some considerable distance beyond the mouth of the sewer; and such filled land is claimed by and in possession of such company." The Santa Fe Street sewer has been emptying into the river at the foot of that street for many years and the city has never given its consent to have the river filled in at that point.
In 1889 an ordinance was passed submitting to the vote of the people a proposition to issue city bonds to the amount of $ 500,000, three-fifths of the proceeds of which were to be used in building a city hall and the balance in "the construction of a public sewer in said city along or near O. K. Creek." The proposition carried, the bonds were issued and two-fifths of the proceeds were used in 1893 in the construction of such sewer for a considerable distance, but it was left unfinished for the rest of the route, and the purpose of the ordinance now in question is to complete that sewer. Since 1893, when that portion of the sewer was built with the proceeds of the bonds mentioned, there have been constructed and paid for out of the general city revenue two other sections of this sewer under ordinances of the city designating it as a public sewer. The sewer as far as constructed drains territory only within the limits defined by the ordinance in question and when completed as now proposed will drain territory only within those limits.
The charter of the city, article 9, provides for the construction of a sewer system composed of "public, district, joint district and private sewers."
etc.
etc. That section also provides that district sewers shall be paid for in special taxbills against the land in the district.
That section further provides that the cost of constructing the joint district sewer, except the sum, if any, specified in the ordinance to be paid by the city, is to be paid in special taxbills against property in the joint district. It also provides that the action of the common council creating the joint sewer district shall be conclusive and no special taxbills shall be held...
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