Crane v. French

50 Mo. App. 367 | Mo. Ct. App. | 1892

G-ill, J.

— The point in this controversy is this: Can the east half of plaintiff’s two acres of land, shown by the accompanying plat, be legally taxed, under the Kansas City charter of 1875, for the grading of Central street?

The plaintiff, by this action, sought to remove a. tax bill issued for the grading of Central street, as a.

cloud on Ms title, taking the ground that it was an illegal charge. The cause was submitted on an agreed statement of facts; the court declined to award any relief, holding the tax bill valid, and the plaintiff brings the case here by appeal.

I. A decision of this case rests upon the construction of certain portions of article 8 of the charter of Kansas City, 1875. Laws of 1875, p. 250. Section 1 authorized the common council to grade any street of the city at the costs of the property fronting on the street when petitioned for by the resident owners of a majority in front feet of the property fronting on the street, or the portion thereof about to be graded. Section 2 of the same article provides that the costs of such grading “shall be charged as a special tax on all the property on both sides of such street, avenue or highway or part thereof graded within the following limits, namely: In case any of the land fronting on the street, avenue or highway or part thereof graded be laid off into lots and blocks, the property so laid of, from the line of the street, avenue or highway, back to the center line of the block or blocks, shall be so charged,, whether fronting on the street, avenue or highway or not; nevertheless the common council shall have power by ordinance to prescribe that such property shall not be charged beyond the alleys in such block, if deemed just and equitable; and, in case any land fronting on such street, avenue or highway or part thereof graded be not laid off in lots and blocks, then the property sa not laid off and the property in the rear thereof on the line of the street, avenue or highway or part thereof graded back one hundred and fifty feet shall be so charged, whether fronting on the street or not, and the property liable for such grading shall be charged according to the value thereof, exclusive of improvements thereon. ”

It will be seen that here it is provided for assessing the two kinds of land along the line of the street — in one case where it is laid off into lots and blocks, and in the other instance where it is not so laid off; but in both cases it must be such land as is “fronting on the street.” Now, this plaintiff’s land comes under neither designation, for the reason that it does not front on Central street, nor is it laid off into lots and blocks; and this, as a fact, is admitted in the agreed statement. All the frontage on Central street, between Twenty-ninth street and Springfield avenue, where this grading was done, was divided into lots and blocks, and hence the extent of the right to tax is limited to the property “so laid off,” back to the center line of the block or blocks. Lot 13 (the ell-shaped (L) portion of block 7), as will be seen from the map, lies along the entire front and between plaintiff’s unplatted tract and the street. Said lot is then taxable for the improvement, but the said unplat-ted land of the plaintiff is not, because it is not “so laid off” — not divided into lots and blocks as the statute requires.

It will not do to say, because this small strip of lot 13 which intervenes between plaintiff’s acre track and the street is so narrow (only about five feet in width) that it must be ignored, and that this plaintiff’s unplat-ted land must be regarded as fronting on the street. It is sufficient in dimensions to cut off the plaintiff’s land from a frontage on Central street, thereby making said two acres of land not fronting on the street, and this excludes it from the taxable district. Neither are we permitted, under the plea of construction, to enlarge or wary the plain meaning of this statute. This enforced taxation, by special assessment for street improvements, is a matter of strict construction. The power thus delegated to the municipalty must be followed strictly in accord-with the legislative grant. No variation, on account of supposed justice or injustice, -will be permitted.

The judgment, therefore, will be reversed, and the cause remanded with directions to the circuit court to enter a judgment for the plaintiff as prayed.

All concur.