Moran v. Lindell

| Mo. | Mar 15, 1873

Fag-nek, Judge,

delivered the opinion of the court.

This was an action on a certified tax bill issued by the City Engineer of the City of St. Louis against the defendants, to defray the cost of macadamizing Grand Avenue in front of their property. The plaintiff had judgment in the court below and the defendants have appealed the case here.

It appears by tlie record, that on tlie 3rd day of July, 1868, tlie City Council passed an ordinance, numbered 6,699, directing tlie Engineer to cause Grand Avenue from Lindell Avenue to Kossuth Avenue to be graded, curbed, macadamized, etc., according to law.

Under this ordinance the work was let out and the plaintiff finally became the contractor. At the time the contract was made, Grand Avenue was of an irregular shape, being eighty feet wide in one section, one hundred feet wide in another section, and one hundred and twenty feet in another section, and Ordinance 6,126 had been passed, providing for widening the whole Avenue to the width of one hundred and twenty feet. But this Ordinance had not been carried into effect. Before tlie macadamizing was put upon the street, the City Council passed two other Ordinances: one 6,86.6, prescribing the manner in which the Avenue should be laid out differing from the ordinary method; and the other 6,902, amendatory of Ordinance 6,599, which provided, that inasmuch as the Avenue was not widened to its full extent as established by ordinance, that the Engineer should only grade the street, and cause the carriage ways twenty feet wide on each side to be macadamized.

It is first objected, that the contract was void because there was no ordinance in existence at the time, defining the dimensions and material and manner of doing the work. But this position cannot be maintained. The contract was made and entered into by the City Engineer, under the provisions of General Ordinance 5,399, which prescribes the manner of curbing and paving streets, and regulates the dimensions and size of the materials used. This question upon this ordinance was before this court in the case of Sheehan vs. Gleeson, (46 Mo., 100" court="Mo." date_filed="1870-03-15" href="https://app.midpage.ai/document/sheehan-v-gleeson-8002884?utm_source=webapp" opinion_id="8002884">46 Mo., 100.) and it was held that the ordinance was a compliance with the charter, and gave the Engineer power to act.

As remarked in that ease, the ordinance wants precision, and is not as full and complete as it should be, but it is not so absolutely uncertain as to justify this court in holding it invalid.

This charter provides, that it shall not be lawful for the City Council to grade, pave or macadamize, any street or. avenue, not established and opened according to law and ordinance, and as there was an ordinance establishing the width of the avenue at one hundred and twenty feet, and it had not been opened to that width, it is thence sought to draw the conclusion that there was no authority for macadamizing or doing any work upon the street, till that ordinance was fully carried out. But, it must be observed, this ordinance was modified or partially suspended by a subsequent one, and that left the street just as it existed before, and as it had been previously established and opened.

Although the contract was made whilst the ordinance was in force requiring the street to be opened one hundred and twenty feet wide, yet the work was not commenced under that-ordinance, and when the action of the Council left the street in the condition that it had formerly existed, the contractor proceeded and assented to the modification, and I entertain no doubt about the validity of the contract.

It is further insisted, however, that because only & carriageway on each side of the .street was macadamized, and the material did not cover the whole street, and reach defendants’ sidewalk, that therefore they are not bound.

The charter declares that the cost of paving, macadamizing, guttering, &c., shall be paid by the owners of the property in the vicinity of the work. There is no positive requirement, that the improvement shall immediately join or connect with the property.

The case of Philadelphia vs. Eastwick, (35 Penn. St., 15,) cited and relied on by the defendants, does not support'their views, and is not an authority for the doctrine contended for. In that case a railroad company located their railroad m the street, and used and occupied a strip of between 40 and 5.0 feet in breadth along the whole front of the defendants’ lot. After the location of the road, the owner of the lot made a deed to the railroad company of this strip of ground. The work or improvement, for which it was attempted to charge the lot, was put upon the other side of the railroad track, and the defendants had no access to the street in front of their lot except by crossing the strip of ground, used and owned by the railroad. As the property was separated from the highway by a strip of land, owned and occupied by another, the court, gave judgment for the defendants.

The facts presented here are wholly different. No land belonging to another intervenes between the defendants’ property and the road, on which the work was put. But on the contrary the defendants own the fee up to where the macadamizing was done. That- the work is not fully completed up ■to where the sidewalk should be, we do not think makes any difference. The city authorities were the proper judges of how much it was necessary to do.

Upon the whole record we have failed to find anything that would warrant an interference with the judgment.

The other Judges concur.