| Mo. Ct. App. | Feb 6, 1888
Lead Opinion
This was a suit upon a special tax bill issued by the City of Kansas for constructing a district sewer known as the Bluff street sewer, in sewer district number twenty-nine, under ordinance number 22,662. The work was done and the tax bill issued in proper form.
The defendant answered, setting up among others the following defence: — Third.—That “said district sewer, so built and constructed, according to said ordinance number 22,662, does not ‘and never did connect with any public sewer or district sewer, Or with any natural course of drainage”, and that, therefore, the tax bill and ordinance were void.
It appears that the city had built a culvert across Bluff street, at the foot of Lincoln street, through which surface water passed on to adjoining flat lands of the Union Depot Company and the Hannibal & St. Joseph Railroad Company; that afterwards these lands were raised by filling in, laying tracks, etc., and to protect them the companies built a trench across their grounds, connecting at one end with the culvert at Bluff street, and at the other with a district- sewer built by the city about the same time the trench was constructed by the companies. By this means the surface water passing through the culvert ran across the private property of the companies through their private trench. Section two of the city ordinance establishing this sewer provides for the connection of one end of it as follows: “Sec. 2. That a district sewer is hereby established and shall
The portion of the charter under which this ordinance was passed is as follows: “Sec. 2. District sewers shall be established within the limits of the districts to be described by ordinance, connecting with a public sewer or other district sewer, or with the natural course of drainage as each case may be.”
The court at the request of the parties made findings of facts in the cause, of which one is as follows: “19. That the said sewer does not and never did connect with any public sewer, or district sewer or any natural course of drainage, as contemplated by the amended charter of the City of Kansas.” This finding was justified by the evidence, and under the authority of the City of Kansas v. Swope, 79 Mo. 446" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/city-of-kansas-ex-rel-frear-stone--pipe-manufacturing-co-v-swope-8007591?utm_source=webapp" opinion_id="8007591">79 Mo. 446, we [must hold the tax bill, upon which this suit was founded, to be void. The case was well stated by the trial judge in his written opinion in the case, in which he says : “It will thus be seen that the sewer in question depends for its outlet upon the open private sewet or trench owned and controlled by the Hannibal & St. Joseph Railroad Company and the Union Depot Company, and located upon the private grounds of these companies. And does not, as required by the city charter, connect with any public sewer, or district sewer, or with any natural course of drainage. The requirements of the charter cannot be disregarded in this way. The city has no preexistent right or implied power in matters of this kind, and when it undertakes to act, it must do so within the limits prescribed by the legislature and if it failed so to do then
It is sought to avoid the effect of the finding made by the trial court, by the contention that the trench across the private ground of the Union Depot and Hannibal & St. Joseph Railroad Companies has become a sewer by dedication. But there is no evidence in the record to suppoz’t such contention. I discover nothing from which a reasonable inference of a dedication could be drawn. “Where without judicial proceedings or compensation, or solemn form of conveyance, it is sought to establish, in pais, a divestiture of the citizen’s landed property in favor of the public, the proof ought to be so cogent, persuasive, and full, as to leave no reasonable doubt of the existence of the owner’s intent and consent.” McShane v. City, 79 Mo. 41" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/mcshane-v-city-of-moberly-8007507?utm_source=webapp" opinion_id="8007507">79 Mo. 41.
It is also insisted that these companies are forever estopped from asserting that their trench is not a public sewer and from preventing its use for sewerage purposes by the city. There is likewise no evidence upon which to base this assertion. The companies connected their trench with the culvert before this sewer was contemplated. Such connection was solely for the purpose of protecting their grounds from surface water and was not intended for the benefit of the public. Besides, allowing surface water to run through their trench is quite a different matter from permitting the foul sewage of a city to pass through it. There is no evidence to show that the companies knew of the intention of the city in regard to this connection until long after the sewer was begun and then the president of one of them protested against it.
The trial court properly found from the evidence that these companies ‘ ‘ never agreed or consented to the use of such private sewer for sewerage purposes.”
The judgment, with the concurrence of Judge Hall, is affirmed
Dissenting Opinion
Dissenting.
The reasons assigned by the majority of my associates are not sufficient to satisfy my mind in destroying the amount of property involved in the tax certificates for constructing this sewer.
A proper understanding of the questions involved • renders a more detailed statement of facts necessary. Prior to 1876 it appears that the grounds about where the Union Depot stands, in West Kansas City, were low, and formed something of a basin into which the waters from the southeast and east were accustomed to flow, from which they found their way out to the Missouri river on the north. At Bluff street, several hundred feet east of the depot building, where the waters coming down this and other streets, and natural depressions, ravines and the like, concentrated, the city built a short sewer or culvert, extending across Bluff street, of such capacity as to admit through it all the waters thus concentrating which, passing westward through this culvert, ran into said basin, or low grounds, and hence found their way out to the river. When the depot company located the Union Depot they tilled up this low ground, so as to raise it about six feet; so that the waters which came through this culvert, and from the southeast and east, would necessarily run upon and spread over the surface of the depot grounds, without any sufficient outflow to the river. It, therefore, became a necessity that some means should be devised by the company to protect its grounds from this overflow. The evidence shows that about this time one Buckley, who was in the employ of the Kansas City, Port Scott and Grulf Railroad Company, which used this depot, and whose president was also president of the Union Depot Company, happened (?) to be elected from that ward a member of the common city council. At once he became active in securing the passage of an ordinance for building a district sewer, number one hundred and twenty-three,, from the Missouri river south to Union avenue, its southern mouth stopping just at the west line of the depot
It further appears that it was the common understanding at the office of the city engineer that this private sewer was to be a continuation of sewer one hundred and twenty-three. It is observable that the depot company dó not appear- to have merely tapped district sewer number one hundred and twenty-three, as a private person securing sewerage, but they connected with the southern mouth of said sewer, wholly appropriating it, and built their sewer as if a continuation of it. After this the city passed the ordinance for building-district sewer number twenty-nine, providing for its connection through the culvert at Bluff street with the sewer thus completed to it. This ordinance was published to the world; and was, as I contend, acted on, and put into force by the city without objection from the depot company. The only pretense of any objection by the depot company is to be found in the testimony of Mr. Nettleton, who was at the time its president. He testified that about the time the city was constructing-this sewer, he asked Mr. Knight, who was city engineer, through the telephone, about it. “Isaid I objected to
This is all that ever occurred in the way of an objection from the depot company. This was no notice to the city. The engineer was not the person on whom to serve such notice. We all' know how such work is conducted. The engineer’s duties are simply to draw the plans and specifications as the basis of the ordinance. The work is done by a contractor. The engineer sees simply that it is done according to plans and specifications, approves or rejects the work when completed, and issues the tax certificates. In no other way does he represent the city. I undertake to say that no authority can be found to bind the city by such notice. The mayor is the representative officer, the recognized official head of the city. 1 Dill. Mun. Corp., sec. 208. Notice should be given to him, or at least to the council. Mere notice to a clerk, or the like, is not sufficient. Nichols v. Boston, 98 Mass. 39" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/nichols-v-city-of-boston-6415145?utm_source=webapp" opinion_id="6415145">98 Mass. 39; 1 Dill. Mun. Corp., sec. 237, note 1, page 262.
It is furthermore to be observed, that the objection was not absolute. The engineer, to meet the objection, of Nettleton, said he would, if necessary, let a contract to arch over the sewer. This seemed to satisfy Nettle-ton, for he made no further objection, and as a matter of fact permitted t,he work to go on. And the law is, that although the sewer may not have been afterwards arched over as suggested by the engineer, in consequence whereof the sewage through the sewer might possibly become offensive, this would not invalidate the tax certificates. As said in Cone v. City, 28 Conn. 364, 377: “ It is claimed that the construction of this sewer was unlawful because it was so made as to discharge itself into the private stream of other persons without their authority. It does not appear that the proprietors of that stream are so injuriously affected by such discharge that they would have a right to prevent it. If,
Then we have this state of' facts, that sewer number one hundred and twenty-three was built so as to meet the necessities of the depot company. It was accordingly built up to their grounds ; and by them actually continued, by connecting with its mouth, up to the culvert at Bluff street, thus utilizing this culvert belonging to the city. The city passed and published the ordinance for sewer twenty-nine which was to connect with the-east mouth of the culvert, and hence through the private sewer to sewer one hundred and twenty-three, and thence to the river; thus making a complete system so far as it went. The company stood by, after the conversation with Knight, and saw this immense work go on to completion, without any notice to the city of any dissent. It has stood by up to 1885, when this suit was brought, permitting the city to use tbe private sewer as an outlet for sewer twenty-nine, without any protest. And in addition to this it would seem from the testimony of Knight that the city has been actually cleaning out the private sewer. In testifying as to why the private-sewer was not arched over,, he said: “ This water coming down from the bluff rapidly would carry with it a large amount of debris, stones, and sticks, and a great deal of mud and everything else, and as soon as that struck the level it would be deposited, and in discussing the matter in fixing the drain, it was decided it should be made open for facilitating the cleaning of it. And frequently since the planks have been torn up and immense amounts of mud taken out. It was intended.' to use that as a safe place where the debris would be-deposited, so that the water entering sewer one hundred and twenty-three would be comparatively free from sediment.”
Now, I submit that from all'these facts and circumstances there was ample evidence- to warrant the court
An effectual estoppel in pais arises in this case, predicated upon a parol license from the depot company to the city to enter upon and use its private sewer. Where a party by his acts and conduct induces another to believe in the existence of a certain state of things, and he is thereby induced to act upon such belief, so as to alter his previous condition, he will be precluded from averring the contrary. Chouteau v. Giddin, 39 Mo. 251. Hence the familiar maxim, that he who is silent when he ought to speak will not be heard to speak when he should be silent.
As was said in Baker v. Railroad, 57 Mo. 265" court="Mo." date_filed="1874-08-15" href="https://app.midpage.ai/document/baker-v-chicago-rock-island--pacific-r-r-8004645?utm_source=webapp" opinion_id="8004645">57 Mo. 265: “When plaintiff permitted the company to go on this land and construct their roadbed, it amounted to a license to them to do the work. * * * The entry under the license was lawful, and under such circumstances, after the expenditure of large sums of money by defendants, and making a costly structure, can the plaintiff, at his mere option and will, revoke the license % * * ••• A license is an authority, or power, and marked with the incidents that usually accompany powers. Among these may be mentioned the right of revocation ■.at any time at the will or pleasure of the person creating the power, or granting the license ; but the doctrine that a power may be recalled at the discretion of the donor, ceases to apply when the power is coupled with .an interest, or is necessary to the possession or enjoyment of a right or title arising from the act or contract ■of the person who creates the power.”
The rule is stated thus by Hare & Wallace: “A license will be a full justification for the acts done under it, even when they consist in the exercise of an authority .or privilege on land, and would, if repeated under an
So Herman, in his work on Estoppel (vol. 2, sec. 982), summarizes the rule as follows: “ Where a licensee has expended money on the faith of the license, and put himself in a position that he would be seriously damaged by allowing it to be revoked, the estoppel is applied in the same manner as it is to those cases of acquiescence and silent consent. A parol license, when executed,, may become an easement on the land, and where acts have been done,in reliance upon a license, the licensor will be estopped from revoking it to the injury of the. licensee. This rule, that a license -to do something on the licensor’s land, followed by an expenditure on the faith of it, is irrevocable, rests upon the principle of estoppel, because the parties cannot be placed in statu quo. Equity treats a license thus executed as a contract giving an absolute right. A license cannot be revoked or withdrawn, as long as it is essential to the possession or enjoyment of the vested right or interest, which has been created by the licensor, placed, with his assent, where the continuance of the license is essential to its enjoyment. This is a branch of the rule that no one can withdraw a promise or declaration, made with a view of inducing others to act after they have acted upon it, and thus place themselves in a position where they must necessarily suffer if it be withdrawn.”
The fact that a part of this sewer lies over private property does not invalidate the assessment, the city having acquired an easement. In Village v. Borden, 94 Ill. 26" court="Ill." date_filed="1879-09-15" href="https://app.midpage.ai/document/village-of-hyde-park-v-borden-6960765?utm_source=webapp" opinion_id="6960765">94 Ill. 26, 34, it is expressly held that if a sewer be constructed over private property, with the knowledge of the owner, under an ordinance, without objection made known to the city, he will be effectually estopped from afterward making any claim for compensation, and the ordinance will not be void because the sewer is .over private property, and the collection of special
The plaintiff, in my opinion, should have judgment.