Waller v. City of Macon

• Decision Date: 21 March 1955
• Docket Number: No. 22080,22080
• Citation: 277 S.W.2d 886
• Parties: Russell WALLER et al., Respondents, v. CITY OF MACON, Appellant.
• Court: Missouri Court of Appeals

Page 886

277 S.W.2d 886

Russell WALLER et al., Respondents, v. CITY OF MACON, Appellant.

No. 22080.

Kansas City Court of Appeals, Missouri.

March 21, 1955.

Paul D. Hess, Jr., City Atty., David Collins, Macon, for appellant.

John T. Barker, Kansas City, for respondent.

BROADDUS, Judge.

This is a suit in equity brought by Russell Waller and eleven other individuals, as plaintiffs, against the City of Macon, as defendant, to have declared void an extension of the city limits of said city, and to enjoin the latter from exercising any municipal authority over the annexed territory. The Wardell School District No. 88 was permitted to intervene as a party plaintiff. The trial resulted in a finding and judgment against the City. The latter appealed.

Defendant is a city of the third class and is located on the south side of U. S. Highway No. 36, and on both the west and east sides of U. S. Highway No. 63. During April, 1950, the Mayor and Council of Macon considered the matter of extending the city limits. And on July 17, 1950, a committee was appointed by the Mayor to study the question and make recommendations to the Council. 'Several open meetings' were held. At one of these council meetings, that of February 5, 1951, four of the plaintiff herein 'addressed the Council * * * protesting the extension of the city limits to include their property.'

On August 6, 1951, the Council passed Ordinance No. 45-B, calling for the submission of the proposed extension to the voters of the City. Inasmuch as it is claimed by plaintiffs that the description of the area sought to be annexed 'is so bad that it will not support a judgment,' we here set out the first page of the ordinance.

'An ordinance authorizing the extension of the City limits of the City of Macon, Macon County, Missouri, by extending said City limits to include the following described lands, situate, lying and being in the County of Macon, State of Missouri, to-wit:

'Beginning at a point on the East City Limits of the City of Macon, Missouri at the Southeast corner of the Southwest quarter (SW 1/4) of the Northwest quarter (NW 1/4) of Section Fifteen (15), thence North on the East line of the West half of the Northwest quarter (NW 1/4) of Section fifteen (15) to the north line of Section Fifteen (15), thence East on the north line of Section Fifteen (15) to the Northeast corner of the Northwest quarter (NW 1/4) of Section Fifteen (15), thence North Five hundred thirty (530) feet to a point on the East line of the Southwest quarter (SW 1/4) of Section Ten (10), five hundred thirty (530) feet North of the South line of Section Ten (10), thence West on a line five hundred thirty (530) feet North of and parallel to the South line of Section Ten (10) and Section Nine (9) to the West right-of-way line of the Wabash Railroad, thence, in a southwesterly direction along the West right-of-way line of the Wabash Railroad to the North line of Section Sixteen (16) which intersection is on the present city limit line.

'Also beginning on the East line of the Northwest quarter (NW 1/4) of the Northwest quarter (NW 1/4) of Section Sixteen (16) and the intersection of the new right-of-way line of United States Highway No. 36; thence Southwesterly along the new South right-of-way of United States Highway No. 36 to a point on the South right-of-way line at Station 1079/50; thence West to West line of the Northeast quarter (NE 1/4) of Section Seventeen (17), thence South on said quarter line to the Southwest corner of the Northeast quarter (NE 1/4) of Section Seventeen (17), thence East along the South line of the Southwest quarter (SW 1/4) of the Northeast quarter (NE 1/4) of Section Seventeen (17) to the Southeast corner of said Southwest quarter (SW 1/4) of the Northeast quarter (NE 1/4), thence South along the West line of Northeast quarter (NE 1/4) of the Southeast quarter (SE 1/4) of Section Seventeen (17) to a point 500 feet South of the South right-of-way line of the Spur to United States Highway No. 36; thence in an Easterly and Southeasterly direction at a distance of 500 feet from and paralleling the South right-of-way line of the Spur to United States Highway No. 36 to the East line of Section Seventeen (17) at the present West City limits.

'All of the Sections above mentioned being in Township Fifty-seven (57) Range Fourteen (14) West.'

Thereafter the 'Mayor's Proclamation and Notice of Election' was published. In this publication an error appeared in the second paragraph of the description of the extension where a highway station '1079+50,' which was indicated in Ordinance 45-B as '1079/50,' was published as '1079-50.' According to the evidence, highway 'station 1079' means that the engineers 'in starting their survey run in one direction and every 100 feet they mark off a station, and then the odd number of feet beyond that station is called 'plus'--plus 50, like 1079 plus 50.'

After the votes had been tabulated, the regularity of which was admitted by plaintiffs, the council on November 5, 1951, passed Ordinance No. 47-B, announcing the results of the election. In this ordinance a directional call, which properly was given as 'east' in Ordinance 45-B and in the published notice, was shown as 'west', which would leave a space a quarter of a mile that was not covered in that description.

The territory within the extension in general consisted of areas situated on the northwest and northeast portions of the former city limits.

The petition filed on December 31, 1951, alleged in substance, that plaintiffs were property owners in the territory sought to be annexed; that the lands sought to be taken into the City were used primarily for farming and agricultural purposes; that there has been no increase in the population of the City to necessitate such an extension for any proper municipal purpose; that there is now a large amount of unused lands in the City available for municipal purposes and residences and no buyers therefor; that the City is now unable to property service the lands in said City with light, water and sewers and many of the residents of said City are without sewer service, and that the residents of the annexed area will never be able to get sewers to connect with their homes; that none of the ground has been platted or held for sale as town lots; that none of said real estate is needed for extension of streets or sewers, gas or water system or to supply service for abodes or business of its residents, or for extension of needed police regulation; that the sole purpose of the extension was to subject the real estate therein and the owners thereof to city taxation, with no possible benefit to plaintiffs.

On July 14, 1952, leave was granted plaintiffs to amend their petition by alleging that: 'The description in the Mayor's Proclamation and Notice of Election was indefinite, misleading and uncertain, and the voters were unable to determine the area of the proposed annexation. The notice among other things in describing the proposed annexation said: '* * * thence Southwesterly along the new South right-of-way of United States Highway No. 36 to a point on the South right-of-way line of Station 1079-50.'' The amendment then alleged: 'There is no Station 1079-50 on the Missouri State Highway Survey Map'.

Before discussing the main feature of the case we should first pass upon the question of whether the description of the property sought to be annexed was sufficient.

The trial court in its oral opinion and findings stated that the question as to designating the point 1079 was not regarded as 'too vital to the matter,' and that concerning 'the matter of descriptions that we dealt with at considerable length in the trial, * * * my ruling on that would be that while the descriptions are not in the most satisfactory form, yet I think that they should be held to be sufficient to describe the boundary and to describe the intention so that we could say that they fix a boundary that is not wholly lacking in certainty, but is sufficiently certain that the proceedings will not be bad for the defects that appear in the description.'

Mr. Edgar C. M. Burkhart testified that he was born and reared in Macon, graduated from its public schools, and by profession was a civil engineer. He received his degree in civil engineering at the Missouri School of Mines at Rolla in 1918. Since that time he has practised his profession extensively, particularly 'all over the northern part of Missouri.' He prepared the maps of the City of Macon which were introduced in evidence. At the request of the city council he prepared the description of the property sought to be annexed and which appears in Ordinance No. 45-B. While on the stand he was asked: 'Will you state whether you can take that description and definitely determine the boundaries expressed in the description? A. Yes, sir.' Then with the map (plaintiffs' exhibit 2) before him he took the description contained in the ordinance and, step by step, pointed out on the map the exact boundaries of the annexed territory.

What a different situation than that appearing in the two cases relied upon by plaintiffs: Sassman v. State Highway Commission, Mo.App., 45 S.W.2d 1093, and State ex rel. Arthur v. Hammett, J., 235 Mo.App. 927, 151 S.W.2d 695. In the first case it was disclosed that 'the description does not embrace any portion of the land actually taken.' In the second it was admitted by all the witnesses [235 Mo.App. 927, 151 S.W.2d 698] 'that the descriptions in the original petition were so erroneous that a skilled engineer and surveyor could not, without field work, such as examining the fences and other marks of occupancy and by arbitrarily changing the descriptions contained in the original petition to conform to the descriptions obtained by such field work, locate the district boundaries and plat a contiguous tract of land.'

Our Supreme Court in State ex rel. Musser v. Birch, 186 Mo. 205, 85 S.W. 361, 364,...