Steffen v. Fox

• Decision Date: 12 November 1894
• Citation: 28 S.W. 70,124 Mo. 630
• Parties: STEFFEN v. FOX et al.
• Court: Missouri Supreme Court

28 S.W. 70

124 Mo. 630

STEFFEN v. FOX et al.

Supreme Court of Missouri, Division No. 1.

November 12, 1894.

PUBLIC IMPROVEMENTS — ASSESSMENT — SIDEWALKS.

The fact that, owing to a difference in the grades of two streets, a sidewalk at their intersection is constructed with a grade from building line to curb which is prohibited by an ordinance, does not render invalid the special assessments levied to pay therefor, where such increase in the grade does not render the walk less valuable or less safe to pedestrians.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by John J. Steffen against Sarah Isabel Fox and another on a special tax bill. There was a judgment for plaintiff, and defendants appealed to the St. Louis court of appeals, from which the case was certified to the supreme court. Affirmed.

Hiram J. Grover, for appellants. Rassieur & Schnurmacher, for respondent.

MACFARLANE, J.

This case was certified from the St. Louis court of appeals. We adopt the statement of Rombauer, P. J., who delivered the majority opinion in that case. 56 Mo. App. 9. The action is one upon a special tax bill for constructing a granitoid sidewalk in front of the property of the defendants, on the northeast corner of Eighth and Market streets, in the city of St. Louis. The petition sets out the various ordinances of the city under which the work was done, the completion of the work, and the issuance of the special tax bill to the plaintiff. The substantial defense made by the answer is that the work done was illegal and void, because done in contravention of an ordinance of the city providing, among other things: "Hereafter no sidewalk shall be constructed, the cross grade of which, or rise from the curb line, shall be greater than one-half inch vertical rise to one foot horizontal distance; and in each instance the curb line shall be maintained at its correct elevation above the city directrix, which shall be determined from the construction of the particular street in question." The ordinance also provides that the violation of the ordinance by any one shall be a misdemeanor, punishable by fine. The trial of the cause by the court, without the intervention of a jury, resulted in a judgment for plaintiff. The defendants appeal, and assign for error the action of the court in refusing to nonsuit the plaintiff, as requested, and the giving of erroneous declarations of law by the court on its own motion. As the declarations of the law given by the court show the theory of the law applied by the court to the evidence, which is the only object of such declarations where a cause is tried by the court, they will be fully set out hereinafter. On the trial there was evidence tending to show that there was a difference between the grade of Eighth street, and that of Market street, at the point of their intersection at this corner, of 5½ inches; that, owing to this difference, it was impossible to comply literally with the provisions of the ordinance above set out, unless a jog or set-off were constructed, running from the apex of the curb at the intersection of the two streets to the apex of the building line on the corner of the two streets; that, in order to avoid such a jog or set-off (the danger of which to passengers along the sidewalk seems imminent), the plaintiff, under the direction of the city inspector,...