The State ex rel. Koeln v. West Cabanne Improvement Company

• Citation: 213 S.W. 25,278 Mo. 310
• Parties: THE STATE ex rel. EDMOND KOELN, Collector of the Revenue, v. WEST CABANNE IMPROVEMENT COMPANY et al.; JOHN H. VETTE, Appellant
• Decision Date: 02 June 1919
• Court: Missouri Supreme Court

213 S.W. 25

278 Mo. 310

THE STATE ex rel. EDMOND KOELN, Collector of the Revenue, v. WEST CABANNE IMPROVEMENT COMPANY et al.; JOHN H. VETTE, Appellant

Supreme Court of Missouri, First Division

June 2, 1919

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Reversed and remanded.

William F. Smith and Henry Higginbotham for appellant.

(1) A valid assessment is a jurisdictional prerequisite to the levy or collection of a tax. Abbott v. Lindenbower, 42 Mo. 168; State ex rel. v. Thompson, 149 Mo. 455; State ex rel. v. Mission Free School, 162 Mo. 336. And there can be no lawful assessment except in the manner prescribed by law. State ex rel. v. Lesser, 237 Mo 318; Leavell v. Blades, 237 Mo. 710. (2) The power of taxation is a sovereign right which belongs alone to the State, and which can be exercised only in pursuance of laws passed by the Legislature for that purpose. State ex rel v. Shortridge, 56 Mo. 130; State ex rel. v. Cunningham, 153 Mo. 651. Assessors and tax collectors must look alone to the law for guidance in the discharge of their duties. State ex rel. v. Snyder, 139 Mo. 549; State ex rel. v. Bridge Co., 134 Mo. 336; State ex rel. v. Lesser, 237 Mo. 318. To determine that a certain article or interest in land is property according to the common law or general classification, is not to determine whether it is taxable eo nomine, although the Constitution provides that all property shall be taxed. The quo modo is a matter of legislative control, and the statute must be steadily followed. De Witt v. Hays, 2 Cal. 468, 56 Am. Dec. 352; Willis v. Commonwealth, 97 Va. 672; Williams v. Sheriff and Tax Collector, 107 La. 101, 105; Kansas City v. Building & Loan Assn., 145 Mo. 53; Abbott v. Lindenbower, 42 Mo. 168. (3) An easement in land cannot be taxed independently, but only as enhancing the value of the dominant tenement -- in the absence of a statute authorizing its separate taxation. City of Fall River v. County Comr. of Bristol, 125 Mass. 567; Boston Mfg. Co. v. Inhabitants of Newton, 22 Pick. 22; State v. St. P. & D. Railroad Co., 81 Minn. 422; State v. Minneapolis Mill Co., 26 Minn. 229; Eastman v. St. Anthony Falls Water Power Co., 43 Minn. 65; Town of Woodruff Place v. Raschig, 147 Ind. 525; Capital City Gaslight Co. v. Charter Oak Ins. Co., 51 Iowa 31; Bradley v. Town of Rock Falls, 163 N.W. 168; Matter of Hall, 116 A.D. 729, 102 N.Y.S. 5; Tax Lien Co. of New York v. Schultze, 213 N.Y. 9. (4) Intangible property appurtenant to tangible property unavoidably and automatically disturbs itself wherever the tangible property is, and, for the purposes of taxation, enhances the value of every part of the tangible property; and should be taxed with and as a part of it. Atchison, etc., Ry. Co. v. Sullivan, 173 F. 464; Stein v. Mayor of Mobile, 17 Ala. 240; People ex rel. v. Barker, 48 N.Y. 177; State ex rel. v. Western Union Tel. Co., 165 Mo. 506; Whiting v. Mayor, 106 Mass. 98. (5) The courts condemn in strong language the arbitrary severance into artificial, independent or fragmentary parts, property which, from the good sense of the thing, naturally forms a unit: as, the separation of appurtenances from the dominant tenements; of tangible from intangible property with which it is connected; of buildings and superstructures from the land on which they stand; and even of the cutting up of that which is a single lot or parcel of land by the tax officials drawing arbitrary lines through the same, thereby dividing the land into needless, nonsensical, unusual, infinitesimal, or valueless fragments or interests. Essery v. Bell, 18 Ontario Law Rep. 76; People v. Fredericks, 48 Barb. 179; People ex rel. v. Barker, 48 N.Y. 77; State ex rel. v. Railroads, 215 Mo. 488; Aldridge v. Essex Road Board, 51 N. J. Law, 166; Muller v. Bayonne, 55 N. J. Law, 102; Biddleman v. Brooks, 28 Cal. 72; Toothman v. Courtney, 62 W.Va. 181; Mullins v. Cemetery Assn., 259 Mo. 152; Rackliffe-Gibson Const. Co. v. Zeilda Forsee Inv. Co., 179 Mo.App. 229. (6) The statute, affirmatively prescribing the method of taxing land and all structures thereon, "and all rights and privileges belonging or in anywise pertaining thereto" as a unit, such statutory method is exclusive of any other method. Sec. 11519, R. S. 1909; Kansas City v. Building and Loan Assn., 145 Mo. 53; Mound City Construction Co. v. Macgurn, 97 Mo.App. 408; City of Hannibal v. Bowman, 98 Mo.App. 108; Toothman v. Courtney, 62 W.Va. 183. (7) Duplicate taxation exists where one person or subject of taxation is required directly to contribute twice to the same burden, while other persons or subjects of taxation belonging to the same class are required to contribute but once. State ex rel. v. Brinkop & Koeln, 238 Mo. 298; 1 Cooley on Taxation (3 Ed.), p. 394; Reading v. Finney, 73 Pa. St. 472. It is double taxation to assess a parcel including therein the value of an easement appurtenant which has been paid by the owner, and to assess over again against the trustees who hold the fee the value of the land in which the easement exists. People ex rel. v. Wells, 139 A.D. 88, 202 N.Y. 518; People ex rel. v. Purdy, 143 A.D. 392.

Edward W. Foristel for respondent.

(1) To constitute a public street, the intention on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists; while a street may appear on the Recorder's plats, yet, if there is an endorsement that it is reserved to the use of the property owners, that endorsement negatives any intention of its dedication to public uses. 2 Dillion on Municipal Corporation (4 Ed.), sec. 636; Collier's Estate v. Western Paving & Supply Co., 180 Mo. 388. (2) A street, not dedicated, is private property, which when owned, there is a tacit condition annexed to the ownership, that it shall contribute to the public revenue. The taxes should be against the record owner, but, after the court has once acquired jurisdiction, the proceeding is against the property. Hilton v. Smith, 134 Mo. 499; Land & Lumber Co. v. Bippus, 200 Mo. 688. (3) One who owns the fee, rather than one who owns an easement, to which it is subject, is liable for the taxes. Winston v. Johnson, 42 Minn. 398. (4) The collector shall receive taxes on part of any lot, piece or parcel of land, charged with taxes. Sec. 11459, R. S. 1909; State ex rel. Wellworth Realty Co. v. Koeln, 255 Mo. 301.

BROWN, C. Railey, C., concurs. Blair, P. J., Bond and Graves, JJ., concur Woodson, J., absent.

OPINION

BROWN, C. --

This is a suit by petition in the ordinary form to enforce the lien of the State for general delinquent taxes for the years 1909, 1910 and 1911 against three parcels of land in the City of St. Louis assessed and described as follows:

"Parcel 1. A strip of land in City Block 4539 beginning at a point in the center line of West Cabanne Place 1323 feet and 6 inches west of the west line of Hamilton Avenue, and extending southwardly parallel with said west line of Hamilton Avenue 245 feet to the south line of Townsend's Subdivision of West Cabanne, according to a plat recorded in Plat Book 12, page 132; thence westwardly 25 feet to the center line of West Cabanne Court; thence northwardly parallel with the west line of Hamilton Avenue 245 feet to the center line of West Cabanne Place, thence eastwardly 25 feet to the point of beginning.

"Parcel 2. A strip of land in City Block 4911, beginning at a point in the south line of Townsend's Subdivision of West Cabanne Place, according to a plat recorded in Plat Book 12, page 132, 1348 feet and 6 inches west of the west line of Hamilton Avenue; thence northwardly 434 feet to the south line of property now or formerly owned by John H. Vette; thence westwardly 25 feet; thence southwardly 434 feet, thence eastwardly 25 feet to the point of beginning.

"Parcel 3. A strip of land in City Block 4912, beginning at a point in the center line of West Cabanne Place 1323 feet and 6 inches west of the west line of Hamilton Avenue; thence northwardly 230 feet to the south line of property now or formerly owned by C. M. Clark; thence westwardly 25 feet; thence southwardly 230 feet; thence eastwardly 25 feet to the point of beginning."

The following is a plat of the strip of land described as West Cabanne Court, fifty feet wide and four hundred and ninety-two feet and six inches long, showing the "parcels" into which it was divided by the assessor, the junction of West Cabanne Place and the respective lots of appellant Vette and defendant Clark abutting the north end.

[SEE ILLUSTRATION IN ORIGINAL]

Appellant, and defendant Emma M. Clark, the owner of the seventeen feet marked on the above plat "C. M. Clark," filed a joint answer, to which plaintiff replied.

The sufficiency of these pleadings to present all questions arising upon the facts is not questioned. All the other defendants made default. All the facts were admitted by stipulation or otherwise at the trial, and are briefly as follows:

In May 1888, George Townsend, the owner of a strip of land 392 feet and six inches wide extending from Hamilton Avenue on the east to Hodiamont Avenue on the west, a distance of about 1750 feet, platted it by the name of "Townsend's Subdivision of West Cabanne Place." This plat was duly approved by the board of Public Improvements of the City of St. Louis, and recorded. On this plat West Cabanne Court extended north and south through the tract, 50 feet wide. It connected with no public street of the city. From the connection shown in the above sketch a strip sixty feet wide extended east through the middle of the tract 1323 feet to Hamilton Avenue. No other way, either public or private, was shown on the plat except a...