180 Mo. App. 40 | Mo. Ct. App. | 1914
This suit was brought by the plaintiff, Bank of Commerce, as assignee of a special tax bill issued by the city of Springfield, Missouri, for the construction of a first-class four-foot sidewalk. Judgment went for the defendant and the appeal is brought by the bank. The trial court made a finding of facts'which the appellant submits here as the case on which the question of the validity or invalidity of the tax bill depends. It may therefore serve as a complete statement of the case and is here set forth:
*43 “The court finds that this is a suit on a special tax hill issued for the construction of a four-foot cement sidewalk and the necessary grading therefor along the east side of Myrtle street and abutting the west side of lot number one in ‘Oaklands,’ of which said lot the defendant is owner; that ‘Oaklands’ is a regular platted addition of the city of Springfield, Missouri.
“The court further finds that-all the proceedings of the city counsel of the city of Springfield providing for the construction of said sidewalk, and the issuance of the tax bill therefor are regular and conform to the law, and that everything was done by the city officials and the contractors as required by law, except as hereinafter mentioned.
“The court finds that the contractors, J. D. Davis and J. B. Ruffin, doing business under the name of Davis & Ruffin, constructed said sidewalk along the lines fixed and designated and staked out by the city engineer, H. G-. Horton; that the walk was constructed of the proper material and in a workmanlike manner and was duly accepted by the proper city authorities, and that the tax bill in suit was issued thereon to said Davis & Ruffin.
“The court finds that the tax bill was for value received duly sold, assigned and delivered to the Bank of Commerce, which said bank is the owner of said tax bill, and that this suit is properly brought in the relation and to the use of the said Bank of Commerce.
“The court further finds that through some mistake or oversight of the city engineer, H. GL Horton, the east line of the said walk was staked out by said city engineer, and as constructed by said contractors encroached upon defendant’s lot to the extent of eight inches at the north end of said lot and running diagonally southwest to a point one hundred forty feet south of the northwest corner of said lot, at which point*44 said east line of the sidewalk runs off of said lot and the sidewalk from there on is in the street.
“The court finds that the number of square feet of sidewalk that have been constructed on defendant’s lot amounts to 46.9 square feet, and that the cost thereof at the contract price of eleven cents per square feet amounts to 5 16-100 dollars.
“The court finds that defendant’s husband notified Davis & Ruffin that he would not pay for said sidewalk if they constructed it on the lot in question belonging to his wife; but the court finds that Davis & Ruffin did not know that they were building any portion of the sidewalk on the lot, but believed that the east line of the walk as fixed by the city engineer was not on the property in question.
“The court finds that with the exception of the encroachment of the walk upon said property, as aforesaid, the walk was properly constructed and all the proceedings were regular and legal, and the tax bill was legally issued and is in proper form and contains the proper description of said lot and that the contractors in all things performed the work properly and according to their contract with the city.
“Whereupon the court finds the issues for the defendant, and holds that under the evidence the plaintiff is not entitled to recover. ’ ’
It was admitted by the appellant at the oral argument in this court that the portion of the work found by the trial court to be on private property consists of a triangular strip, the base of the triangle being eight inches off the front of defendant’s lot, and the hypotenuse running back to a point one hundred and forty feet south of the front line of defendant’s lot. The sidewalk is four feet in width. It lies along the east side of Myrtle street the entire lengdh of defendant’s lot — one hundred and sixty-seven feet. It is admitted by appellant that that part of the work contained in the lines of the triangle referred to is not in
Plaintiff submitted three instructions (which were refused) which developed the theories on which it hoped to recover, namely: (1) That the encroachment on the private property did not in any way render the tax bill void, plaintiff seeking recovery thereon for the full amount. (2) Admitting the part contained in the triangle on defendant’s lot was unlawful, it would not render the tax bill void as to the entire balance of the sidewalk. (3) Conceding that all the sidewalk covered by the tax bill back to the one hundred and forty foot point was unlawful, a recovery should be had for the twenty-seven feet continuing in the parking.
The first proposition — that a tax bill is not rendered void because the improvement is placed on private property- — finds some support in the authorities cited in appellant’s brief: Village of Hyde Park v. Borden, 94 Ill. 26; Holmes v. Village (Ill.), 13 N. E. 540; Hunerburg v. Village (Ill.), 22 N. E. 486; Maywood Co. v. Village (Ill.), 29 N. E. 704; Jackson v. Smith, (Ind.) 22 N. E. 431; Palmer v. Stumph, 29 Ind. 329; McGill v. Bruner, 65 Ind. 421. See, in addition, Boynton v. People ex rel. Kern (Ill.), 42 N. E. 842; Page and Jones on Taxation by Assessment, Vol. 1, Secs. 398 and 399, and cases cited.
However, the great weight of authority in this country is the other way, and such cases as we are able to find in Missouri hold that such an assessment is.
There are some decisions in this State where the tax bill is held not to be rendered invalid provided the landowner has done some act that can be construed as a waiver or permit, but that question is eliminated from this case as the evidence shows that the defendant was vigilant in protesting and giving notice to the contractors calling attention to the fact that they were encroaching upon her private property and notifying them that in the event they placed the sidewalk where they proposed to lay it and where they did subsequently place it, she would not pay for the same.
It would seem also that in this State the contractor must perform his contract as he has agreed and he cannot safely rely on the lines, measurements and assurances of the city officials. [Carroll v. City of St. Louis, supra; Wilson v. City of St. Joseph et al., 125 Mo. App. 460, 102 S. W. 600.]
The case of Johnson v. Duer, 115 Mo. 366, 21 S. W. 800, fully recognized the rule in this State that no special assessment may be legally collected for public work done on private property, and that ease goes so far as to hold that one other than the owner of that property will be relieved of the cost of that part of the work which was constructed on the private land.
We must hold against the appellant’s first conten-' tion and sustain the trial court in refusing the first offered instruction.
The question is, should the court allow for that portion of the improvement which lies entirely in the parking? It is undoubtedly the tendency of the decisions in this State to uphold the validity of tax bills where the facts will permit the court to say there has been a substantial performance of the work under the contract. In all the eases cited by appellant in which the allowance has been made and the property held for a proportionate charge (namely: Ernst v. City of Springfield, 145 Mo. App. 89, 130 S. W. 419; Johnson v. Duer, supra; Walsh v. Bank, 139 Mo. App. 641, 123 S. W. 1001; Neenan v. Smith, 60 Mo. 292; First National Bank of Kansas City v. Arnoldia, 63 Mo. 229; Neil v. Ridge, 220 Mo. 233, 119 S. W. 619; Joplin ex rel. McKee v. Freeman, 125 Mo. App. 717, 103 S. W. 130; Haag v. Ward, 186 Mo. 325, 85 S. W. 391; Perkinson v. Schnaake, 108 Mo. App. 255, 83 S. W. 301; Steffen v. Fox, 124 Mo. 630, 28 S. W. 70; Borough of Athens v. Carmer (Pa.), 32 Atl. 422; Webb City ex rel. v. Aylor, 163 Mo. App. 155, 147 S. W. 214; St. Joseph ex rel. Danaher v. Dillon, 61 Mo. App. 317), will be found the statement or the necessary inference that the contractor has substantially complied with the requirements of his contract. If, in the case at bar, it could be said that the contractor substantially complied with the contract, the cases cited by appellant would require that the contractor be paid for the work less that portion placed on defendant’s lot, not because of the quantum meruit statute of 1911 which was enacted after the work in question was completed and which is therefore not applicable, but because the courts prior
The judgment is affirmed.