"This
in an appeal by plaintiff from a judgment of the Circuit
Court of the City of St. Louis
in favor of the defendants upon certain special tax bills
issued for the work of constructing sewers in Harlem Creek
Sewer District No. 7 in St. Louis. The seven tax bills in
issue aggregate $ 5,750.61.
"It is not necessary to set forth the petition in
the case, as its sufficiency is not challenged. The petition
is in the usual form to enforce the alleged lien of seven
special tax bills issued July 29, 1912, to the plaintiff
bank's assignor, by the City of St. Louis, for the
alleged construction of district sewers against seven alleged
separate parcels of land in St. Louis, according to streets
and alleys conforming to those shown on a plat of the
so-called Semple Place, recorded in the office of the
Recorder of Deeds of the City of St. Louis, on December 24,
1892.
"As
to the answer it is sufficient to state that, among other
things, it alleges that the lots or parcels of land against
which the seven tax bills were issued constituted one entire
tract of land which, since January 1, 1909, was the private
property of defendant, J. Denniston Lyon, trustee under the
will of Charles J. Clarke, deceased; that the tract had never
been laid out or subdivided, and that Kossuth, Brown and
Slevin avenues in said tract, and upon which parts of the
sewers in question were laid, were the private property of
defendant, J. Denniston Lyon, trustee. That parts of the
sewers in question were constructed on the said so-called
streets and alleys without the consent of the said trustee,
Lyon, or the beneficiaries of the trust. The answer then
alleges that each tax bill is void because it is assessed
against a part of a single parcel of land; because the
ordinances are invalid in that they require parts of the
sewer to be built on the private property of the defendants;
because the enforcement of the bills would deprive the
defendants of their property without compensation or due
process of law, contrary to the Constitution of the United
States and of the State of Missouri.
"The
answer, as stated, is pleaded in seven counts, each count
being directed at a count in the petition, and each setting
up, among others, the above defenses, The answer to each
count, however, includes a prayer that should the tax bills
be held valid, nevertheless the court should reduce the tax
bills to such an amount as would represent the proportion of
the cost of the sewers, exclusive of those
constructed on defendant's land. The reply was a general
denial.
"As
to the trial, plaintiff having made out a primafacie case,
the defendants offered in evidence deeds affecting title to
the lots described in the tax bills and embracing the land
included in the sewer bills, and also other land, and
affected by this suit. These deeds show that the land in
question, together with other land, was conveyed by Charles
J. Clarke and wife to John V. Hogan on October 11, 1892; that
on said date said Hogan executed a deed of trust on the said
land, including the land in question, to William Booth,
trustee for the said Charles J. Clarke. On November 15, 1902,
said Hogan conveyed the land in question, by warranty deed,
to the Semple Place Realty Company. Defendant next offered in
evidence the plat of Semple Place, executed December 6, 1892,
by the Semple Place Realty Company, John V. Hogan and one
Christiana Winklemeyer, acknowledged and recorded in the
Recorder's office of the City of St. Louis, December 24,
1892, said plat subdividing the land against which the said
tax bills were issued, into lots described in said tax bills,
the streets and alleys being designated thereon.
"The
deed of trust on the said land, of October 11, 1892, was
foreclosed and the defendants offered in evidence a
trustee's deed from William Booth, trustee for John V.
Hogan, to Charles J. Clarke, dated May 17, 1897, reconveying
said land, which had been subdivided, as aforesaid, and a
plat thereof recorded. Defendants also introduced the will of
said Clarke, showing the probate thereof of January 7, 1900,
by which will John V. Hogan and Frank Semple were made
trustees for the residuary estate embracing, among others,
the land against which the tax bills were issued, for the
benefit of defendants, Louisa S. Clarke, Thomas S. Clarke,
Louis S. Clarke, Joseph K. Clarke, Mabel McCrea, Mildred
Painter, Clarke Painter and Alden Painter.
"Defendants
introduced testimony which was not contradicted, to the
effect that a portion of the sewer constructed
under the ordinances creating the sewer district was located
on what was alleged to be Brown, Slevin and Kossuth avenues
and certain alleys, all of which said streets and alleys were
located on a part of said Semple Place, as appears on the
recorded plat thereof, hereinafter mentioned.
"Leo
Osthaus, the Assessor of Special Taxes for the City of St.
Louis, a witness for the defendants, testified that part of
the sewer district had been constructed upon the above named
avenues and alleys as shown on the recorded plat of Semple
Place, and that he had assumed from the recorded plat that
these avenues were open streets, but that at the time of the
drawing of the bills in suit he had not personally known
anything about the physical characteristics of the particular
parcels of land and had not seen the land prior to that time,
but that he had assessed the property according to the plat,
which showed the streets and alleys thereon, as shown by the
said records, since 1892, and that in calculating the area of
the district against which the tax was assessed the witness
had treated the so-called streets and alleys in Semple Place
as open streets and alleys and not as belonging to the Clarke
estate, but as highways.
"On
cross-examination the witness testified that in figuring out
the area of defendants' property, to be charged with its
proportion of the costs of the entire sewer, the area of the
streets and alleys claimed by defendants to be private
property, had been excluded, to-wit, 123,151 square feet
that the total cost of the sewer was $ 89,717.98; that the
cost of the construction of that part of the sewer of which
defendants complain, namely, on Brown, Kossuth and Slevin
avenues, and the alleys, as shown on the plat of Semple
Place, was $ 2,872.36; that if there was deducted from the
total cost of the sewer the cost of constructing the sewers
claimed to be on the private property of the defendants, the
total cost of the sewer would be reduced to $ 86,845.42; that
if the defendants' property was treated as one entire
tract, and if the area of the streets and alleys which
defendants claim to be private property, are
figured in determining defendants' proportion of the
reduced cost of the sewer, then in spite of the reduction of
the total cost of the sewer from $ 89,717.98 to $ 86,845.42,
the plaintiff's proportion of the reduced total cost, by
reason of the
increased area caused by the inclusion of the streets and
alleys which defendants claim are private property, will be $
7,179.55, instead of the present charge against the property
of $ 5,750.61; that the general taxes had been assessed
against the property according to the said recorded plat of
Semple Place, said assessment for general taxes treating the
streets and alleys shown on the plat as though such streets
and alleys were public property, and that the general taxes
had been paid since 1892 on the...
