City of St. Louis v. Meier

77 Mo. 13 | Mo. | 1882

Hough, C. J.

This is a proceeding instituted in the circuit court of St. Louis on the 14th day of February, 1878, to open Ninth street in said city. At the time of the institution of this proceeding, Ninth street was already open north and south of the land proposed to be taken. The intervening space interrupting the continuity of said street and involved in this suit, was 595 feet in length north and south, and sixty feet wide, that being the width of Ninth street, and was owned by the following named persons, in the order stated: 275 feet by Adolphus Meier¿ eighty feet by the Kingsland heirs, eighty feet by the Sarpy estate, and 160 feet by Margaret Walther; and each of these parties owned land on either side of the several strips above described.

In 1865 Leroy Kingsland filed with the recorder a plat of a suDdivision of certain land owned by him, which included the eighty feet mentioned above as belonging to the Kingsland heirs, and made thereon the following dedication : “ First and Ninth streets and alleys as indicated, above are also dedicated to public use, provided the owners, north and south of the above subdivision will dedicate the: same streets and alleys through their respective tracts without expense to the owners of the lots of the above subdivision.” Ninth street as indicated on this plat covers .the strip eighty feet long and sixty feet wide belonging to the Kingsland heirs.

In instituting this proceeding the city acted upon the idea that this street had been dedicated to public use, and did not, therefore, seek to condemn it, and the commissioners recognizing the dedication as having been- made upon the condition that Ninth street should be opened up north and south of the land dedicated without any expense to the owners of the lots in said Kingsland addition, lying east and west of said dedicated strip, did not assess any benefits against said lots. Indeed no mention whatever is made of the Kingsland property in the report of the commissioners, although it appears upon the plat accompanying that report, as a part of the territory through which Ninth street is proposed to be extended, and which will be benefited thereby.

GLeorge S. Drake, one of the commissioners, testified that, they assessed no benefits against the Kingslands because of their dedication; that if no dedication had been made, the Kingsland land, would have been benefited as. much as the other land north and south; that the attorney of the Kingslands was present and stated that they would not object to the opening of the street if the commissioners did not assess any benefits against their laud, and that the commissioners could not award any damages to the Kingslands and thought it but fair not to assess any benefits against them. E. GL. Obear, another of the commissioners, testified that the Kingsland land would receive as much benefit as the other land north and south, but that they did not assess it with benefits because of the dedication. E. C. Cabell, the third commissioner, testified that they ratified the conditional dedication, and were of opinion that if the land was not dedicated, the damages and benefits would be equal. He further stated that a plat and dedication were shown to the commissioners, to the effect that the street was to be opened without cost to the representatives of Leroy Kingsland.

It may well be doubted whether the dedication by Leroy Kingsland of the strip eighty feet long .and sixty feet wide for Ninth street could be accepted by the city by instituting proceedings for the condemnation of the land north and south of it. Such proceedings do not fulfill the condition of the dedication. The condition was that the property owners north and south of him should also dedicate a strip sixty feet wide through their lands. Kings-land must be supposed to have known that he could not legally make, and that the city could not legally accept á dedication by him upon condition that when the city should condemn the land north and south of him, he should not be assessed with benefits. Whether he would be liable to be assessed with benefits would depend upon the provisions of the city charter, and not upon the agreement of the parties. Besides the owners of the land north and south of him could not by any arrangement between him and the city, be made to bear any portion of the tax for benefits which would otherwise be chargeable against his property.

The dedication indorsed upon the plat filed by Kings-land, must, it seems to us, take effect according to its terms, or not at all. Kingsland knew that if all parties dedicated ■a strip sixty feet wide through their lands, no condemnation could take place and no benefits could be assessed; and he also knew that if they did not make such dedication, and it became necessary to condemn their land, he would be liable to be assessed with benefits, although he should give a strip for Ninth street through his land.

Nor could his legal representatives rightfully escape an assessment for benefits by appearing before the commissioners and consenting to the opening of Ninth street through their land upon condition that they should not be assessed. Such an arrangement is an evasion of the law, and may render unequal and partial the special tax assessed to pay the damages awarded for the land taken.

Nor could the commissioners lawfully relieve the Kingsland property from an assessment for benefits by an imaginary balancing of such benefits against the value of the land not condemned. They had no right to consider the value of the land not taken, and which they regarded as having been dedicated.

No dedication having been made by the owners north and south of Kingsland, and no unconditional dedication having been made by the representatives of Kingsland, the only proper method of proceeding was to condemn the Kingsland land.

We regard the ordinance as valid, and are of opinion that the commissioners properly disregarded the conveyance of Adolphus Meier to his son E. D. Meier of the property sought to be condemned. It was made after the institution of this proceeding, and from the testimony was evidently a device merely of Adolphus Meier to escape from an assessment for benefits.

The judgment of the court of appeals and of the circuit court will be reversed and the cause remanded.

The other judges concur.