89 Mo. App. 644 | Mo. Ct. App. | 1901
This is an action to enforce a lien, on defencfkntjs property for a special taxbill issued for building a sewer in Kansas City, Missouri. The judgment in the trial court was for defendant. The taxbill is one of a series that were declared invalid by the Supreme Court in Neill v. Gates, 152 Mo. 585, which coincides with the view taken here in a
The question then is this: Does defendant’s act in using the sewer make valid a taxbill which is otherwise a nullity as affecting defendant or his property? In other words, does defendant’s act make a valid bill out of a void bill ? We are of the opinion that it does not, and that it ought not, to have that effect. Defendant had no lot or part in employing the contractor to build the sewer. The street is his property subject to the easement of the public. Walker v. Sedalia, 74 Mo. App. 70; McAntire v. Telephone Co., 75 Mo. App. 535. He, therefore, finds upon his property (which he may rightfully use for any purpose not inconsistent with public use and control) an underground drain called a sewer. Why may he not use it without paying for it when it has been put there without his request, and, it may be, against his- consent ? We have the highest authority for saying that when one finds a structure upon his property which has been placed there without his request, or direction, or consent, he can not be made liable for its cost by using it. United States v. Railway, 120 U. S. 227; Zottman v. San Francisco, 20 California 96, 107. In the first case, the United States Government during the Civil War rebuilt one or more of the railway company’s' bridges which had been destroyed. Afterwards, the railway company used the bridges as their own, as a part of its railway. It was held that the Government had no claim against the company for constructing them. The court said: “Whenever a struct
In Zottman v. San Francisco, supra, there was a void contract for a stone base to an iron fence around “Portsmouth Square” in the city of San Eranciseo. The city -afterwards maintained and used the fence. This was held not to create a liability against the city. It was said by way of illustrating-the point decided that “where work is done upon the streets of a city without authority — liability does not follow because the streets may be improved thereby, or their use, as previously, may be continued.” The case of Bartholomew v. Jackson, 20 Johns. 28, is applicable by way of illustration. There, Jackson saved Bartholomew’s stack of wheat from approaching fire by setting to work and removing it to a safe place. The work being performed “without privity or request,” it was held no recovery could be had, though of course, Jackson accepted the work by using the wheat.
We have not been able to discover any ground whatever, within legal principles, upon which to validate the taxbill in suit.
But it is said that the case of Hill v. City of St. Louis, 159 Mo. 159, s. c., 60 S. W. Rep. 116, supports plaintiff’s action. This is by no means true. In a negative sense it may fairly be said to be against it. That case arose under an ordinance of the city of St. Louis regulating the use of sewers whereby it- was enacted, in substance, that no one should connect his property by private drain or sewer with a district sewer in the street without having first paid the assessment
No such question is presented in this case. This case involves the question above stated, viz: whether the lien of a void taxbill, issued for building a sewer, may be enforced against property for the reason that the property-owner made use of the sewer ? We have no hesitation in answering that it can not.-
The judgment will be affirmed.
