115 Mo. 139 | Mo. | 1893
The trial court found plaintiff’s petition insufficient upon demurrer. The correctness of that ruling is questioned by this appeal.
Plaintiff seeks to recover of the city the amount of a special tax bill paid by him to contractors on account of the improvement of Florida street.
Plaintiff has been since 1892 the lessee of a tract of land on the corner of Broadway and Florida streets in St. Louis. The premises include lots numbered 7 and 8, each of thirty feet frontage on Broadway, in city block 245, as appears on the original plats of survey; but in the plaintiff’s lease they are described as “sixty feet on the east side of Broadway,” etc, with no reference to the respective lot numbers. Lot 8 is on the corner of Florida street, on which it abuts. Both lots have a depth eastwardly from Broadway of one hun
Part of the costs of the improvement was borne by the city, under one section of the ordinance for the reconstruction "of Florida street. That section best explains itself:
“Section 5. Whereas the estimated cost of the foregoing work, and all proper connections and intersec.tions required, as provided for by this ordinance, to be assessed against some of the lots fronting or bordering on the aforesaid improvement amounts to more than twenty-five per centum of the assessed value of said lots, therefore the amount in excess of twenty-five per centum shall be paid by the city of St. Louis, and the sum of $6,510 is hereby' appropriated on account thereof,- payable out of the fund set apart for street reconstruction.”
The facts in judgment are all conceded.
The plaintiff’s position is that part of the special tax (to the extent or $825.59) levied against the land under lease to him is illegal in that it is in excess of twenty-five per centum of the assessed value of lot 8, which, he claims, is alone chargeable with such tax. He does not assert, nor does his petition show, that the total special tax levied against lots 7 and 8 (regarding them as one tract) is in excess of twenty-five per cent, of its assessed valuation. The gist of his contention is
The charter provision upon which the case depends is this:
“The cost of construction of all the foregoing improvements within the city shall be apportioned as follows: The grading of new streets, alleys, and the making of cross-walks and the repairs of all streets and highways and cleaning of the same, and of all alleys and cross-walks, shall be paid out of the general revenue of the city; and the paving, curbing, guttering, sidewalks, and the material for the' roadways, the repairs of all alleys and sidewalks shall be charged upon-the adjoining property as a special tax, and collected and paid as hereinafter provided. Whenever the estimated special taxes to be assessed against any property shall in the aggregate amount to more than twenty-five per cent, of the assessed value of said property calculating a depth to such property of one hundred and fifty feet, then the assembly shall provide out of the general revenue for the payment of the amount in excess of the said twenty-five per cent. The board of public improvements shall notify the assembly whenever an ordinance is pending which requires an appropriation out of the general revenue to pay a part of the cost of the improvements therein contemplated.” (St. Louis Charter, art. 6, sec. 18; Revised Statutes, 1889, sec. 18, p. 2123.)
By the limitation of the taxing power above •expressed, the right to charge .the “adjoining property” for improvements, such as are here in view, is qualified by the phrase “calculating a depth to such property of one hundred and fifty feet,” as well as in respect of the amount of the special tax.
Regarding the land as an entirety, it abuts on Florida street for a distance of one hundíed feet, and runs thence southward to a depth of sixty feet. If it may properly be so considered and treated, it is plain that the depth from Florida street is not beyond the range of taxation established by the charter. The city authorities so dealt with it, and that is the substance of plaintiff’s complaint.
As the special tax bills are, by positive law, prima facie evidence of the liability they purport to declare, the burden devolves on plaintiff to show their incorrectness.
The assessment here was made by the city upon the theory that the land in question constituted but one piece of “adjoining property.”
The plaintiff and his lessor certainly treated it as one piece by the description in the lease and by ■ the establishment of one rent therefor. The plaintiff so treated it in his mode of use and occupancy thereof; and, in our judgment, there was no violation of plaintiff’s rights in the action of the city in so treating it.
"Where property is unimproved and vacant, the divisions thereof on plats of survey may be generally regarded as the basis for such assessments as these; but. where the owner, by the manner of his use and improvement of his land, has discarded such artificial divisions, and has practically made one lot of several, he cannot justly complain if the taxing authority treats his property as one piece, just as he himself has done. Kemper v. King, 11 Mo. App. 116.