168 Mo. App. 276 | Mo. Ct. App. | 1913
Appellants, as owners of a residence lot fronting west on Ninth, street in Columbia, sue in equity to cancel a special taxbill for paving said street. The cancellation of the taxbill is prayed for upon three grounds: 1st, that the street in front of appellants’ property was graded below the established grade; 2d, that the paving was not placed exactly in the middle of the street; and 3d, that the cost of the work was not properly apportioned. The ■regularity of the proceedings and the performance of the work is conceded in every other respect.
Both the resolution and ordinance provided that the street should be brought to the established grade and should he paved forty feet wide for several specified blocks in the business part of the city and thirty, feet wide in the others.
The contract was awarded defendant Stewart, who did the work under the direction of the city engineer and his deputy. The grade stakes and the curb lines were set by the engineer, and the contractor conformed strictly to them without knowledge of any variation from the established grade. The engineer laid out practically all of the street strictly according to the established grade, except that in the block in which plaintiffs’ property is situated, he found the sidewalks, which were already in place, slightly below grade; and he. set the paving grade stakes to correspond, thus making the pavement slightly lower than the paper grade. The evidence varied as to the extent of this difference. A witness for plaintiffs said the pavement at the northeast corner of the property was a foot lower than the established grade, and that at the southeast corner it was six inches lower. The city engineer, testifying for defendants, said the difference
Was there a substantial compliance in this case? The grading was done by the contractor in strict accordance with the grade stakes set by the city engineer. The contractor did not know these stakes varied from the established grade. He did not therefore slight or avoid the work but did more grading than the specifications called for. The deeper grade did not detract in the slightest degree from the sightliness of the
The question presented by the pavement slightly deviating from the center of the street is a little more difficult of solution, and yet it is governed by the same principles as the variation from the grade. A short distance south of plaintiff’s property, Ninth street has an offset or jog where it crosses Elm street. Some six or seven years before, Ninth street had been graded and paved with gravel. To avoid an offset in the graveled track it was laid so that the north and
The objection that the cost was not properly apportioned is based upon the fact that in certain specified business blocks the pavement was forty feet in width while in the residence blocks it was only thirty feet wide, and the whole cost was apportioned to the abutting property according to the frontage without regard to the width of the paving. But the whole cost is required to be so apportioned. [Sec. 9254, R. S. Mo. 1909.] The law does not require the paving to be uniform in width. Nor would it be wise to require uniformity, since in business portions of a city it would be necessary to pave from sidewalk to sidewalk, while in a block or so away a less width would not only be all that is necessary but more beautiful and attractive, besides rendering the whole less expensive. The Legislature might have said that the lots having the wider pavement should bear the greater expense, or that the portions having the same width should be put in sections to themselves and the cost of each section assessed to the lots fronting on each. But as it did not, but said that when a street is paved the whole cost shall be assesed against the abutting property in proportion to the front foot; this is the only method permissible.
Finding nothing in the record to justify the intervention of a court of equity, the decree of the chancellor' dismissing the bill is affirmed.