7 Mo. App. 91 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is a suit on a special tax-bill for the -construction of a district sewer. The defence chiefly relied on is that some of the property within the district, liable to be taxed, was omitted from the assessment. The Circuit Court, sitting as a jury, found the issues for the defendants, and gave judgment in their favor.
The lot sought to be charged in this proceeding lies in a parallelogram measuring about one hundred feet from north to south by five hundred feet from east to west. There was an agreed statement of facts, as follows: —
“ The pai’ties hereto, for the purpose of the decision of this cause, agree upon the following statement of facts, to wit: —
“1. It is admitted that the city of St. Louis established West Camp Spring Sewer District No. 49 by ordinance No. 9483, and contracted with the plaintiff for the construction of sewers within the limits of said sewer-district as provided in said ordinance ; that the plaintiff" performed said contract; that the cost of the performance of said work under said
“2. It is further admitted that there is a strip of ground one foot wide running along the eastern and southern boundaries of the said lot of ground described in the petition, which strip does not belong to the defendants, and that said strip is correctly shown by the plat or map contained in the answer; that the said strip has not been charged with any of .the cost of the construction of said sewer within said district; that said strip of land one foot wide was conditionally dedicated to public use by one Archibald Gamble, who was the owner thereof, in the following words, to wit: “A strip of land one foot in width is reserved along the east and south boundaries of the lot marked Mrs. Tatum’s (being the same lot described in the petition), until the owners of said lot shall give ten feet along said boundaries for an alley.’ That Gamble did this in 1852 ; that said strip of one foot in width has not been used since said dedication, for private purposes, but that the owners of the ground on the north and west of said strip of one foot have never given ten feet along said strip for an alley, nor any part thereof; that the whole cost of constructing said sewers has been assessed against the property in said district, exclusive of said strip of one foot in width, and of the public highways within said district; that the sewers as established and constructed in said district cannot be reached from defendants’ ground except by crossing said strip of ground of one foot in width, so reserved by said
It is required by law that the whole cost of a district sewer, when completed, shall be assessed as a special tax “ against all the lots of ground in the district respectively, without regard to improvements, and in the proportion their respective areas bear to the area of the whole district exclusive of the public highways.” It is apparent from this that if the strip of land one foot wide, mentioned in the agreed statement, has by any means become dedicated to the public use as part of the public highway, it was properly omitted from the assessment. But if it was private property when the sewer was constructed, an assessment which failed to include it would be manifestly contrary to law and unjust to the holders of other property.
The agreed statement is imperfect, in not showing under what circumstances the strip of ground was reserved by Archibald Gamble. For aught that here appears in that connection, the reservation may have been contained in a conveyance of adjoining land to a private party. From another part of the record, and from the briefs of counsel, however, we gather that the reservation was appended to a dedication of a strip nine feet wide on the east and south of the reserved strip, for an alley. The language used may imply a dedication, or rather an intention to dedicate after fulfilment of the condition. To show that the grantor has
It may fairly be inferred that Archibald Gamble intended by his reservation to interpose a barrier of private property between the owners of the lot herein sought to be charged and the nine-foot alley, until they should dedicate a strip ten feet wide from their property, and thus to compel the establishment of an alley twenty feet wide, to the enhancement of the value of his own land as well as of theirs. By what means does it appear that this purpose has ever been abandoned by Gamble or his representatives? Certainly not by their failure to enclose the strip. For that was never necessary to add emphasis to the reservation, or to explain its object. That object is as patent to-day, and, for aught that appears, is as important to the interests of Gamble’s representatives, as it was when the reservation was made. Lapse of time has made no change in the circumstances which induced the reservation, with its stipulated condition, and there is no authority for assuming that the grantor or his representatives have changed their minds. The condition is still unfulfilled, and the strip remains where the reservation fixed it, — an appendage of the private estate of Archibald Gamble, or of those who. have succeeded to his rights.
The computation of the amount due upon the defendants’ property for the work done was therefore erroneous. But does it follow that the contractor can recover nothing for his labor and expenditure on the sewer? To hold this would be to defeat the manifest ends of justice and the clear intent of the law.
We have heretofore said that, in proceedings of this nature, the tax-bill is the cause of action. Prendergast v. Richards, 2 Mo. App. 192. This must be understood in
It is clear, therefore, that the contractor’s right to be paid for his work will not be made to stand or fall forever by the accuracy or inaccuracy of the engineer’s computation or apportionment. The engineer may correct his errors and issue a new tax-bill.- This being the case, there seems to be no reason, on principle, why the trial Court may not,