Twiehaus v. Wright City

• Decision Date: 13 March 1967
• Docket Number: No. 52209,No. 2,52209,2
• Parties: Clarence H. TWIEHAUS and Viola Twiehaus, Respondents, v. WRIGHT CITY, Missouri, Appellant
• Court: Missouri Supreme Court

Page 450

412 S.W.2d 450

Clarence H. TWIEHAUS and Viola Twiehaus, Respondents, v. WRIGHT CITY, Missouri, Appellant.

No. 52209.

Supreme Court of Missouri, Division No. 2.

March 13, 1967.

McQuie & Deiter, Montgomery City, for appellant.

Ziercher, Tzinberg, Human & Michenfelder, Clayton, for respondents.

LAURANCE M. HYDE, Special Commissioner.

Action in three counts, the first two for $8308.17 claimed to be the balance due on a contract for construction of water and sewer lines between plaintiffs and the city; with a third count seeking recovery on the theory of inverse condemnation for the value of the lines. The City's answer alleged the contract was invalid being in violation of Sec. 26(a), Art. VI of the Constitution and Secs. 88.670 and 432.070. (Statutory references are to RSMo and V.A.M.S.) The answer also denied any condemnation or appropriation of the water and sewer lines constructed by plaintiffs and contained a counterclaim seeking to recover $4876.35 paid by the City to plaintiffs on the contract.

The court entered judgment for plaintiffs for $8308.17, making the following finding: 'Court finds the contract entered into between plaintiffs and defendant on October 13, 1955 to be valid and binding on the parties; and the Court further finds that defendant has assumed ownership of said sewer and water lines and appropriated them to its use.' The City has appealed. We have jurisdiction because a construction of the Constitution is involved, since the trial court decided the contract involved was not prohibited by the Constitution but was valid and binding on the parties and this affects both plaintiffs' claim and defendant's counterclaim. Sec. 3, Art. V, Const.

Plaintiffs in their brief do not contest the City's claim that their contract violated Sec. 26(a), Art. VI of the Constitution by requiring payments to be made, in years following the year it was made, out of income and revenue of future years which it obviously did. Instead plaintiffs claim that under the doctrine of equitable estoppel the City could not assert its invalidity because of its representations, acts and conduct and is bound by it. This contract, made October 13, 1955, to be effective from the date of annexation of the addition, provided that plaintiffs would build such lines 'as will be needed for the proper development of said addition.' It further provided that the City would reimburse plaintiffs for the construction cost after annexation of the addition by annual payments from 'all revenue taxes on real estate and personal property, sewer sinking fund tax, park tax and all license fees, collected from the residents of said Twiehaus addition.' Plaintiffs rely on State on inf. McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 615, 106 A.L.R. 1169, stating: '(T)he doctrine of estoppel * * * applies, not only to natural persons and private corporations, but to municipalities as well, and that even though such municipalities are acting in a 'governmental capacity'.' However, none of the cases cited in support of this statement involved estoppel to assert a constitutional prohibition to a contract provision. Most of the cases cited involved, as did the Missouri Utilities case, the right of public utilities to continue operations or to operate in a way long permitted. Nevertheless in the Missouri Utilities case (96 S.W.2d l.c. 618) we held the city was not estopped from refusing a franchise and ousting the company from use of its streets by inaction prior to building its own plant.

More in point are cases holding invalid contracts prohibited by statutory or constitutional provisions, such as Fulton v. City of Lockwood, Mo.Sup., 269 S.W.2d 1 (1954); Grand River Township of DeKalb County v. Cooke Sales and Service, Inc., Mo.Sup., 267 S.W.2d 322 (1954); Bride v. City of Slater, Mo.Sup., 263 S.W.2d 22 (1953); Donovan v. Kansas City, Mo.Sup.Banc, 352 Mo. 430, 175 S.W.2d 874, 179 S.W.2d 108 (1943); Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645 (1914); Grauf v. City of Salem, Mo.App., 283 S.W.2d 14. Equitable estoppel was urged in the Donovan case, in which the city had received and used articles furnished without a valid contract, making about as strong a case for equitable estoppel as could be imagined. The opinion of the Court en Banc (175 S.W.2d l.c. 881) held: 'Equitable estoppel is impotent to purge transactions of the fatal infirmity of being in violation of law.' In that case we also said contracts not conforming to statutory requirements 'are ultra vires the municipality in the primary sense of that term.' Certainly that is true of this contract violating an express constitutional provision. This contract was void ab initio and we hold there can be no equitable estoppel in this case.

Plaintiffs' claim of inverse condemnation is based on their contention that the City assumed ownership of the water and sewer lines and appropriated them to its use. The City says these lines were private lines constructed by plaintiffs to only the properties within the addition they were establishing; that plaintiffs voluntarily sought and received permission to connect these lines to the City's public systems, solely for the convenience and benefit of the property within their addition; and that the City has never made any use of the lines other than for service to the residents of the addition and has never done any act to appropriate them for public purposes.

Plaintiffs bought a tract of land, platted and developed it for the purpose of selling lots for profit. They requested and on April 14, 1955, received permission to connect the water lines they were constructing to the water system of the City. Construction of the water lines commenced in 1955 and completed in 1957. They received permission to connect their proposed sewer lines on June 9, 1955, after submission of plans to the State Board of Health and some construction was done on them in 1955; also completed in 1957. At a special election, December 6, 1955, plaintiffs' addition was annexed to the City with other land. Plans for the water and sewer lines were submitted to the City but no request for approval was shown. There was no formal action accepting or assuming control of the water and sewer lines by the City but the City several times has repaired water line breaks and thawed out frozen water lines. There has been no maintenance done by anyone else. Permission for connecting the water lines to the City's system was sought and given six months before the illegal contract was made. This seems to indicate an original intent to dedicate to public use. Plaintiff Clarence Twiehaus expressed the view that he sold both systems to the City by the October 1955 contract.

The basis of inverse condemnation is that under our constitutional provision (now Sec. 26, Art. I, 1945 Const.) 'private property cannot be disturbed nor can the proprietary rights of the owner therein be divested until damages are ascertained and paid to the owner or paid into court for the owner.' Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, 70. If property is taken or damaged without agreement or legal proceedings, one of several remedies of the owner is that 'he may waive the tort...