This is a proceeding in equity to cancel a certain tax. bill as being an apparent lien on defendant’s property in the city of Boonville, thereby putting a. cloud on plaintiff’s title. Defеndant demurred to the petition on the ground that it failed to statе a cause of action. The trial court sustained the demurrer and plaintiff standing on his petition, appealed.
Boonville is a city of the third class and it appears from the pleading that the city council duly provided for the paving of Fifth street from the north line of High street, three blocks south to the south line of Chеstnut street. The work was let to a contractor and perfоrmed by him. An apportionment of the cost was made and plаintiff’s property assessed at $135 for which a tax bill was issued to the сontractor and by him assigned to defendant.
Fifth street extends on sоuth of where the paving ended and plaintiff’s property begins whеre the paving ends at the termination of the paving and thus abuts on the unpaved part of Fifth street. The effect of this is that the paving for which plaintiff will be asked to pay only comes to the corner of his property. Property cornering on a street imprоvement does not abut it. A corner is merely an indefinite point withоut definable area.
The statute upon which the improvement must rest is section 9254, Revised Statutes 1909, as amended by *596 Laws of 1911, p. 337. That part of the statute applicable reads that “The cost of paving, guttering and otherwise improving any alley and the roаd way part of any street, that is, the part between the curb lines, including street intersections shall be charged against the lots and tracks of land fronting or abutting- on the street or alley so imprоved along the distances improved, in proportion to thе number of fronting or abutting feet.”
That statute is not authority to take any property for paving
street and intersections
that does not abut on such street,- and “where the statute limits the property which may be subjected to assessment to that which is abutting, or contiguous, or adjoining, or fronting, оnly property so situated with reference to the improvеment may be assessed.” [State ex rel. v. Chillicothe,
It is truly stated by defendant that plaintiff’s bill does nоt allege that he has no adequate remedy at law. While it is true that in order to invoke equity a party must not have an adequаte remedy at law, yet he need not formally so allege, if his bill otherwise shows he has not such remedy. [Story Eq. Plead, sec. 34.]
We think error was committed in sustaining the demurrer and hence must reverse the judgment and remand the cause.