*1 City v. Company, Appellant, Joplin. (2d) W. 38 S. District and School 1068. One, May 21, 1931.

Division *2 Grayston Grayston C. H. appellant; M. for Geo. J. and Chas. Dickey of counsel. respondents. Haywood Scott R. A. Pearson and Mallett,

Russell *3 Leo Sater, E. Johnson Amici and James E. Curias. opinion in this casé written Commissioner C.—The

STURGIS, approval meets other commissioners SeddON judges opinion of of Division herein indicated. except One as Commissioner far follows: approved, as is as Seddon, so Court controversy the Circuit was This submitted upon which ease, the facts setting forth as 1548 and provided by Sections controversy depends, as is de- controversy 1919. facts which Revised Statutes as follows: pends agreed by parties to be are plain- designated as Joplin Works “Come now District School City Joplin, Jasper, tiff, and the they parties defendants; designated as and state Joplin, ac- subject a civil might be the question to a in difference which facts containing the hereby agree upon a case tion, and and herein present a submission controversy depends and which the Missouri: Circuit Court of the same the said agreed upon are follows: the facts organized were defendants plaintiff “1. That and that all stated during at the times herein, as above stated Missouri, in the city is located between corner thereof and runs to the line southwest District the School counties; lines of that-, city of said lines substantially Joplin are and were the same mentioned all times herein was at Joplin, of city is and laws general organized under class second at all is and was State; the State laws of under the organized times herein mentioned corporations, manufacturing applicable to business Missouri, distributing treating, purifying and engaged the business of said throughout limits of water within and enacted by franchise ordinances being so to do authorized law, provided city in manner time to time the said *4 charter, located is, by its Joplin Company Water Works said city Joplin. in the of Works Com- Joplin Water agreed “2. It further that the said the owner mentioned herein

pany is was at all the times de- city Joplin, Missouri, fee of in the of the land taxing pur- city school state, county, and assessed for scribed of the Court poses set out in the order property personal copied; Missouri, hereinafter for the date Company Joplin Water Works said company at by made June, 1928, was a return assessed $450,000. total of were assessments that none of said It is further “3. Appeals by Board

changed Equalization or by the Bloard of county that, 1929, the 3, of June county; date said but under Joplin to the said county, upon due notice court of said cor- changing and its order hearing, and a made Works read as order notice and recting assessments, which said the said follows, to-wit: copy follow a Joplin [Here the notice to the Water Works Company, acceptance a written of service of said by notice Joplin Water Works May 10, both dated 1929.] response “In foregoing notice, Joplin Water Works Company appeared by Wells, its superintendent, J. N. its Grayston attorneys, & Grayston, parties ready and the announced for trial. counsel, “After hearing the argument evidence and

(county) court takes the adjourns matter under advisement and the further hearing of this matter until the 3ivdof 1929. June, “In the Matter of the Appearing Correction of Errors in Con- nection with Description Property Joplin Company. Works “Now on day June, 3rd at nine o’clock a. comes m., the Mallett, Jasper, appearing by prosecuting attorney, its Russell of Joplin, Jasper County, Missouri, appearing its attorney, Pearson, R. A. School District of Missouri, appearing Haywood its attorney, Scott, Joplin Water Works Company, appearing by superin- its tendent, J. N. Wells, and attorneys, Grayston its Grayston. & “The court finds that the real estate Water Works Company has been and is assessed as follows:

Total Valuation By Assessor: Joplin Water Company; Highland East Addition 119_$ To Joplin, Lot 400' Joplin Water Works Company; Murphy’s First Addition 139_ to Joplin, Lots 129 to 32,500 Joplin Water Works Company; Murphy’s First Addition 160_ Joplin, Lots 7,800 Joplin Water Works Company; Miscellaneous Numbered tracts Township Section 15, 27, Range 33, _1

Lot No. 39,000 personal And its property of_$450,000 assessed the total sum “The court finds that the total of personal prop- assessment as erty, as so made, is erroneous in property that it includes $445,000 value of personal is and property, was not but estate, to the said real and the amount thereof should be added to the total assessment of said real estate taken from the assessment personal property. *5 “And the court further (except- that all finds of said real estate

ing said Lot 119), numbered consisting contiguous of lots and tracts, is, many improved and has been for years, one used as parcel tract or of real estate, in machin- buildings, that the fixtures, ery, power boilers, pumps, pipes therein and there- connections purification for the plant of water indivisible on constitute one by chemicals, the filtration coagulent mechan- the addition of gas of process, diffusion chlorine for steriliza- ical tion, the addition and purified of such treated and water and then the distribution County Jasper, city of within said that the dis- plant through pipes running tribution from said meters, pipes service constitute indivisible dis- including system appurtenant said real estate as a whole tribution part and constitutes a Lot owned thereof. Said said in is used connection said distribu- system, having tion thereon valves automatic electric pipes, pump purpose giving pressure, to be additional used necessary, portion Joplin. when to a of said “And the court raw further finds that water from Shoal County, brought plant by Creek Newton through to said Missouri, pipes, sixteen-inch, running two one ten-inch and one County Jasper County, from the line between Newton a dis- county approximately point tance of from said line one mile discharge plant at and into hereinbefore described pipes running said pipes in Newton continuations of power plant said Newton which takes the raw county water pumps from the intake at Shoal Creek in said through pipes plant the same said above performs stated, and no is in no used or other service and wise purification involved and distribution of the water as before portions pipes Jasper County and that stated, said said were $450,000 personal included the total assessment property, and the court further finds that the said total assessment there $5,000 property personal prop- is and was sum assessed as covering supplies and cash on hand. automobiles, erty por- “The court further finds that the assessed valuation of that pipes lying, being Jasper County tion of said two and situate county pipes between said line and the of said at their said end point discharge plant at said is the sum of $5,000. $445,000 “It is therefore ordered the court that the sum of personal be stricken from the said assessment and that same amount be against transferred and added to the assessment 119) tract, said real (excepting estate said Lot combined as one so that against the assessment above real estate the said described whole, 119) (excepting appur- including said Lot as a the said system, portions tenant distribution ten-inch and also the of said pipe sixteen-inch from the Newton line to the lines point discharge at the shall be a said total $524,300, property be personal and that assessment of that proper corrected and $5,000; reduced the amount *6 970 County Court, the in Clerk of be made the books of the

entries shall order. to conform to this the Collector the Assessor and description that by parties hereto the agreed It all the “4. Company, property Joplin of the plaintiff, op- manner, methods of connections, thereof, the the locations parts portions placed upon the eration, and the valuations by the made in said order so correctly thereof set forth the for determination of county accepted agreed as facts court and are controversy herein. questions in the and matters system agreed distribution “5. It is further that the order, including the in said Water Works as described County running from the Newton ten-inch sixteen-inch mains basin of settling point discharge line of water into many years been has for company’s plant in the personal property included and returned considered $450,000 should be classed valuation of belief that the same by accepted so personal as and that returns were said property, many years being correct Jasper County tax authorities by Supreme Court of respect, in that and until the decision v. Harns rel. Missouri in of Missouri ex the case entitled State (2d) 14 if the said items berger, 554, Mo. S. W. were property personal property, such returns are and were not law; accepted upon and the made and as to the mutual mistake by County attempted Court of correction made or to be made County, copied herein, was made Missouri, in the order light Supreme Court in an effort said decision of the law announced to so correct the as to conform to said assessments by representatives above-1 said case as understood named defendants. by

“6. It after said decision is further Supreme Equalization County, Mis- Court, the Board of of Newton souri, system position took all said distribution was appurtenant pumping plant by the to the real estate and owned plaintiff company in Newton located on Shoal Creek Missouri, the total assessment said real estate increased by substantially $27,000 adding value of the $475,000 system Jasper County the value said distribution as assessed in actually Missouri, real estate plain- by county $27,000,so that the assessed the assessor of said at tiff, now stands assessed two Water Works property, stand as liens counties for same and the assessments company plaintiff by the real owned estate county court, by against as fixed and corrected in Newton plaintiff company estate owned county said reason the valuation of the increase or addition to as above stated.

“7. plaintiff It is contended the order of the said Court County, Missouri, illegal ei’roneous and that the operated plain- so owned and by the in tiff County, Missouri, is not to the real estate *7 by plaintiff owned Jasper the and in Missouri, located or any part portions law; or thereof, by and a matter of tak- ing $445,000 the said sum of personal property from the return of adding and the same to the assessed valuation of the said real estate in County, Missouri, county 119’, other than said Lot the said illegally eourt upon added to the lien of and for said taxes the real estate to which said amount thereby was added and cast upon plaintiff’s cloud by title to said real estate reason of such apparent lien for said additional amount.

“Plaintiff also if any property contends that the returned and personal assessed as property constituting such so-called distri- system bution appurtenant is or was the to said real in estate Jasper County, Missouri, portion pipe the the lines from the County Newton point line to discharge water settling basin in Joplin, Jasper County, Missouri, and $5,000 valued at the sum of county order court, said was appurtenant and is not estate, to said real and the valuation placed thereon should not been said have added to the County real estate; portions pipe lines, and that if appur- said tenant any to estate, appurtenant real are and were to the real by plaintiff estate owned located Newton Mis- souri, and appurtenant connected with pumping on said County land.

“8. The defendants and each of them contend that all of said system, including portions pipe of said lines be- County tween discharge the Newton point line and the said settling basin, and $445,000, valued at the total sum of were in by plaintiff to the said real estate owned County, Missouri, 119, than other said Lot and that the said by county legal order made was is and valid as court made, against computed upon and that estate, the taxes real said $445,000 the valuation after thereof the addition sum of thereto, paid; any and will if constitute liens until but that portion ap- of the said was or not so-called distribution is purtenant only portions pipe to said is estate, it said running point lines between line the Newton $5,000. discharge in settling said basin so valued sum of at the agreed “9. It is further shall determine whether that this court system appurtenant the said distribution the real estate owned is plaintiff County, Missouri, in whole or in company part, order made and shall determine whether or not the so Jasper County, Missouri, Court of in whole or valid part, wholly if valid, may not direct then this court adjust of Court or correct its order Missouri, so as to conform to law. agreed party may appeal

.“It further that either from the decision of this writ of upon court or have the matter reviewed error, may appellate determine whether or not court wholly may said order part, valid, is valid if whole or not direct such made; pending correction as' be and that should litigation the defendants and each of them be restrained and shall enjoined collecting question from $445,000 taxes the sum of herein, enjoined and shall be collecting attempting to col- any penalties lect computed any sum; taxes all said until final controversy determination of herein.” the matters

An affidavit, attorneys subscribed and sworn to for the respective parties, with, part of, was filed case on June 1929, setting controversy forth that “the real, proceedings good faith, are in rights determine *8 parties,” requirement conformable to the 1548, of Section Re- vised Statutes 1919. agreed argued was case and submitted to the Court Circuit July and on 1929, 12, the said circuit court made a entered judgment, which, reciting appearances after respective parties, is as follows: “The matters at being issue upon submitted to the court agreed facts, statement of reading considering after same hearing arguments counsel, the court issues finds the

in favor of the defendants. “It is therefore adjudged and decreed order of the that Court of County, Missouri, agreed set forth statement of facts 3, final date 1929, June valid the same is sustained and in all things affirmed as made.' “It is further ordered, in agreement accordance parties set forth agreed said provisions statement of facts pending decree herein, litigation this the defendants and each of them enjoined be restrained and collecting on taxes herein, the sum $445,000 question enjoined from collect- ing or attempting to any penalties upon collect any taxes for the sum, said and until final determination of the matters in contro- versy herein; plaintiff suit, nothing take this go defendants hence plaintiff hereof and recover of their costs (cid:127) cause, and that execution issue therefor.” time, due filed a motion for new trial and motion in judgment, arrest of both which motions were overruled by the circuit court. The Works Company thereupon appeal was an allowed to this court judgment from entered the circuit court case.

973 Ptior argument to tbe and submission of the ease to this court on appeal, Messrs. Leo H. Johnson and James E. Sater, attorneys representing Missouri, applied to this court for permission to file a brief as amici curiae, court, and this on MarchJ 22, 1930, made and entered order granting permission. Pursuant to said order and permission, the amici curiae have filed herein. brief I. The instant controversy is by, occasioned of, out arises the recent decision of Division Two of this court in the case of State ex rel. Sedalia Water Co. v. Harnsberger, Mo. 94, S. (2d)W. 554, the decision in which case was promulgated on

March 1929. The question main decided in Sedalia Water Company ease was whether the water mains, laid in the streets of Sedalia, and constituting the distribution system of the Sedalia Water Company, by means of which distri- system bution water supplied to the various customers of the Water Company in said city, and which physically connected with the plant waterworks and pumping station of the Sedalia Water Company, a forty-five- acre tract of land lying outside of corporate limits of the of Sedalia, but lying within the territorial limits of Pettis land estate which the said is located, and, as such an appurtenance, to be assessed and valued as an inseparable and integral part of said real estate, for the purposes of taxation, or whether such water mains are be classified and assessed personal property, for the purposes of taxation, under the statute of our relating State *9 to taxation and (Chap. revenue R. 119, 1919). S. The taxation and revenue statute (Sec. of our State 1919) R. S. defines the terms “real estate” and “real property,” as in used said statute, to mean and only include “not the itself, land . . . with all things contained therein, but also all structures and buildings, improvements permanent and other fixtures of whatsoever kind thereon, . . . and all other property belonging to manufactories hind, whatever . . . rights and all privileges of or in belonging anywise pertaining thereto, except may where the same be otherwise denominated chapter.” The “personal term prop- ’’ ‘‘ erty, as in used statute, said is defined to mean and every include tangible thing being subject to ownership, whether animate or in- animate, and not forming part or any parcel property as here- of Applying the (12967) said section inbefore defined.” the taxation State, and revenue statute of our to the facts in in evidence the Sedalia Water Company case, supra, Division Two of our court therein announced legal the conclusion “upon that, both reason city in the in streets Sedalia authority the mains the water plant located, is upon which the land the of the real estate” for the part a should valued as

therefore be Mo. l. c. purposes taxation. [322 106.] upon which instant contro- summarized, facts the Briefly the case was submitted to the versy whereon depends, judgment decision, these: The court for circuit herein Company was, mentioned, at all the times Water Works fixtures, buildings, consisting plant, aof waterworks owner upon contiguous pumps, all certain boilers, located machinery, corporate entirely within the limits tracts of land situate system, con- Jasper distribution city Joplin, county, in and of meters, throughout extending pipes, and sisting mains, service in County, and laid the streets Jasper in city of Joplin, system phys- which distribution ways city, in said public other ically in plant situate the aforesaid waterworks Jasper connected with County. The Water Joplin, city of Creek, a supply from Shoal Company its of raw water obtains County, and the Water flowing stream or water course Newton Creek, in Newton Shoal a tract of land near Company also owns machinery of pumping plant, the upon is located a County, which propels Creek and water from Shoal plant draws the raw extending pipes, from through supply water two raw settling emptying into pumping station in Newton water- constituting the upon the lands reservoir, located basin, or Joplin, in Company city of Water plant works County performs no serv- County. pumping plant Newton pump raw water from Shoal than to Creek, ice or function other through propel raw water supply, the source basin, reservoir, settling into the supply pipes, and thence two city of within located the lands pumped County. After raw water Joplin, settling discharged into County, and is source Newton filtered, purified and water then Jasper County, the basin in at processes, chemical of certain mechanical by means city Joplin, plant in the distri- throughout the pumped is then purified and filtered water pumping power exerted system by means of the bution Company’s waterworks machinery contained Jasper County. Joplin, in the its lands physical connection County has no plant in Newton pumping County, and in the *10 is distributed purified water by which the power supplies no force or County. Jasper Company Water the to the customers of Com- Water court in the Sedalia of this Prior to the decision charge County having Jasper of pany supra, tax officials case, the property purposes for tbe of tbe assessment valuation of tax- and 1928) ation, (as 1, by the real of June estate owned assessed Joplin Company, lying Jasper County, Water Works and within personal property at the of Water $79,700, valuation of and Company $450,000, was assessed at the valuation of such assess- upon personal property of based return of being ment the Water Company Jasper County, filed of with the Assessor wherein the Company system, Jasper Water listed its distribution located personal property. foregoing assessments were not County, changed by Equalization Jasper County, the Board of (as 1919) required by board Monday S. met 12820, Sec. R. on the first publication and March, promulgation 1929. After of the Company case, decision of this court in the Sedalia Water supra, pursuant County Jasper County, Court of to Section 12938, and after notice 1919, Revised Statutes due had been served accepted Joplin upon, by, Company, Water Works held hearing in the matter of the correction of errors the said personal property assessments of the real estate and 3, County Company, on June Court and, Jasper County correcting made and entered order assessments, deducting $445,000 the sum of from the assessed personal property valuation of by Company, the Water $445,000 adding sum of said the assessed valuation of the (except 119) real estate Lot the Water situate within Jasper County, so that the assessed valuation (except 119), including said real estate Lot distribu- tion in Jasper County, including portion also that supply pipes extending boundary the two from line between Newton settling counties County, basin shall aggregate amount to the sum of and so $524,300, personal valuation of property shall be reduced from assessed $450,000 $5,000. the amount of to the amount of Court Jasper County order) (in also found said as- portion sessed supply pipes, lying valuation of the two boundary situate in extending line point between Newton and discharge, counties pipes basin, settling said into the the lands constitut- ing the $5,000. County,, was . Prior to Company the decision of our court the Sedalia n casé, tax officials of Newton had assessed the estate, lying and situate owned used Company pumping Water Works as a plant, at a $27,000. Shortly pub- promulgation after the .valuation lication of the decision of our court in the Sedalia Water case, Equalization Board of of Newton increased assessed valuation of the in Newton real estate situate *11 by $27,000 $475,000. the Water in- Company,

owned to by Equalization County so made Board of of Newton crease Company valuation of the real estate of'the Water in the assessed $448,000, substantially County in Newton amounted to which is system amount of assessed valuation of distribution lo- city in Jasper County, of as and Joplin, cated fixed deter- by Jasper County. tax of mined officials precise question presented by agreed for determination therefore, system the distribution case, whether of the wholly city Water Works within the Company, Joplin, (ex- Jasper County, portion supply and that of the two pipes tending pumping County settling from the station in Newton to the n basinin County) Jasper County, within appur- as lies tenant to lands real estate Company, or situate Joplin, Jasper County, upon which is located principal main or and of the Water assessed, purposes taxation, are to be for an valued as inseparable integral part Company’s of the Water estate real Jasper County; supply whether pipes to the land the Water situate County, upon in Newton pumping plant, which is located the which only is used purpose pumping the raw water from the supply source of settling Shoal Creek to the basin in the purposes and are to be valued and for the assessed, inseparable taxation, integral part of the Water Com- pany’s County. estate Newton curiae, appear attorneys

II. The amici who this court as legal representatives of Newton their brief filed permission herein court, (1) order of this assert that Newton necessary indispensable party is a to

agree(j case submitted to the Circuit Court County, and, joined inasmuch as Newton was not as a party case, agreed to the Circuit Court the submission Jasper County jurisdiction was without to hear and determine (2) agreed case, judgment thereon; to render controA’-ersy parties 'the agreed between the submission case is real, pretended, not actual and but is collusive fictitious, 'and moot, judgment wherefore the Circuit Court of court, should be reversed be the cause should Jasper County remanded to the Circuit Court of with directions dismiss case. (Sec. 1548-, 1919) The statute R. S. under which the instant con- troversy was submitted to the Circuit Court of reads follows: question might subject in difference,

“Parties to a which be the action, may, action, agree of a without a case contain- civil controversy depends, ing present the facts any jurisdic- court which would have submission the same brought; appear, by affidavit, tion if an action been but had it must controversy proceedings good that the real and faith, *12 rights parties; determine the thereupon of the the court shall hear case, judgment thereon, and determine the and render as' if an provides depending.” (Sec. 1549, action were statute further 1919) R. S. : judgment may in

“The be enforced the same manner as if it had action, been in provided rendered an unless otherwise in the submission; and, subject in manner, like shall be with and costs, appeal provided an error, to or writ of in the unless otherwise submission.”

Our research appellate discovers no decision court of attempts State which parties necessary to define what are and indispensable to agreed case, the submission of an as authorized and above-quoted statute. The sub

Provicled ject-matter agreed proceeding, of the instant or case, power authority Jasper is the right, the tax officials County (and subsequently tax) to assess to the distribution portion Joplin supply pipes and that of the two of the Water actually in Company physically which are situate in appurtenant inseparable and as an to, County, tegral part of, by Company, the real estate owned Jasper County, upon prin situate in or main, which is located cipal, Company. appears of Water It to our County concern, minds that Newton direct and has no immediate legal interest, controversy in the determination of the involved proceeding the instant proceeding. The instant not does any question, right directly involve, wise or draw in and au thority County the tax powers officialsof Newton to exercise the lodged tax! assessment and taxation which are and vested county. “question presented officials difference,” of that by agreed wholly exclusively submitted one case, is between the property Water Works as the owner of lying within the territorial limits of on hand, the one tax county, authorities of on the other The judgment proceeding hand. is rendered the instant not rights county of any .conclusive of Newton is un judgment proceeding, affected left the instant and is free litigate to Water Works untrammeled Company the power authority matter of the of the tax officials County Newton assess, tax, property and to of Water 'Corn- land pumping sta County upon which is located the

pany in opinion that Newton We Company. tion the Water subject-matter County any legal sense, in the interest, no has As is said controversy proceeding. instant involved in the every “Broadly speaking, proceeding Corpus Juris, 85: in 47 law, rem, equity, or at nature, whether in judicial aof only an interest who have necessary parties those, and those rights may be subject-matter proceeding and whose in the' no Conversely, person who has judgment. concluded necessary party thereto.” subject-matter not interest necessary not a that Newton We therefore conclude herein, agreed case submission indispensable party to the jurisdiction of the had and that the Court Circuit party as a joinder of Newton agreed without case therein. controversy sub assert The amici curiae furthermore pretended, parties is collusive and mitted ease presents agreed case real, not and therefore the actual and gen question law. As a merety abstract a moot or *13 appellate courts rule, neither trial nor eral pretended causes, wherein it determine moot or will undertake to controversy or no actual and real appears that there is involved, judicial of practical wherein relief can follow a determination no controversy, controversy. an actual And, the absence of the an ordinarily appeal or writ of appellate will dismiss court trial cause with directions to the error, or will remand the moot [Fugel judgment the cause. v. court to vacate the and dismiss (2d) (Mo. 743, 746, 2 there Sup.), Becker S. W. and authorities cited.] circumstance, alone, proceeding is an

But mere that parties agreed have as to facts one, amicable that the or determination, is not proceeding which is to be submitted for proceeding, of the moot character or determinative pretended. The proceeding is determinative factor collusive controversy presents an actual involv- proceeding is whether the ing parties. between the adverse interests clearly 1 applicable Corpus Juris, 974, is thus stated in rule controvérsy involving an a con- 975: “But where is actual there objection of or no determination of crete ease fact it is to' a right, controversy right denial was for that the assertion or determination, making what purpose procuring of is particularly controversy a test concerns a case, termed where n matterof public speedily . . moment which should be settled. . may, however, being An amicable action be without fictitious or are collusive, and, circumstances, under some amicable actions to controversy in- approved encouraged. If there is an actual be

979 volving parties, adverse interests between the the action will not regarded collusive, as although right be fictitious or involved purpose making was asserted or denied case, for the test a. . parties . . or the have which evidence submitted, may the action is be opinion to or the same entertain validity brought.” to to which the is statute test action In v. Co., Adams Union I. 134, 140, Supreme Railroad R. 141, Court “A Rhode Island has said: moot is case one which seeks to an determine question, upon existing abstract which not does rest rights. or right shown, facts Where a concrete ease or we fact principle no policy deprive party know or which will law a óf a simply determination because his motive the assertion of such right is to secure such determination. It is a matter common ’’ practice. Most of trespass try cases sort. title are

Speaking to question, Supreme States, Court of the United through Mr. Chief TANEY, Justice said in Veazie, Lord v. How.

255: “But an action, amicable in the sense in which these words used courts justice, presupposes dispute there parties concerning right. between some matter of And in a case of that it kind sometimes happens, that, purpose obtaining for the decision of the controversy, incurring without expense and needless trouble, agree they to conduct manner, the suit in an amicable say, they that' will unnecessary not embarrass each other with forms or technicalities, will mutually they admit facts true, know to be requiring without proof, bring point and will dispute before the decision, court for subjecting without other each expense unnecessary delay. there But must be actual con troversy, and amity adverse interests. The consists manner brought which it is to issue before the court. And such amicable actions, being objects so far from always censure, approved encouraged, they because greatly facilitate the administration of *14 ’’ justice between the parties. Ex parte In Steele, 694, 701, Fed. it is only way said: “The disputed right can subject ever judicial be made the investiga- is,

tion first, to it, exercise then, having and acted, present to justiciable controversy shape in such disputed right the can passed be upon in a judicial tribunal, pronounce which can right the power and has the to enforce it. When there is an actual, bona-fide legal contest as to a right, agreement an to put case, the made, when by actual exercise of right the it, resistance to in such shape determined, right can be readily by court, especially when the dispute concerns a matter public moment, which should speedily be settled, has never been condemned the courts. It a everyday common, practice in every State of the Union. The noted ’ ’ Legal Tender up Cases were made way. in that CO00 .o (Sees. The statute 1548, 1549, Revised 1919), Statutes under and

by virtue of which the proceeding instant is submitted for decision and judgment, provides parties that “the a question in difference, which might subject be action,” of a civil may, without necessity of bringing a action, “agree formal upon a containing case ’’ controversy the facts depends, may submit agreed any case to court which jurisdiction have would if a formal had brought, provided, been however, action that it appears, af- fidavit, controversy real, that “the proceedings good are in faith, rights parties.” determine the of the parties instant proceeding made filed in the Circuit Court of Jasper County the prescribed by affidavit the statute, reciting that “the controversy parties between hereto, as set forth and shown in agreed statement of facts, real, and proceedings good faith, rights to determine the of the parties.” Morever, the agreed statement of the facts herein shows upon its face that controversy parties between the is real. It appears therefrom that respondents right have exercised the authority to assess value, for the purposes of taxation, the system portion supply pipes of the appellant, Joplin Water Works Company, which lie and are situate within County, appurte- to, nances inseparable integral as an of, part the lands or real estate of Company, lying the Water in Jasper and situate County, upon which is located main or principal Water Company. right and authority respondents assess and value system the distribution supply pipes appellant, Water Company, lying and situate in constituting integral an part of appellant’s real estate in County, is disputed and contested by the appellant, Water Company. The appellant, in disputing right and authority so exercised respondents, contends that the distribution and a portion of supply pipes, although physically situate in County, are nevertheless appurtenant to the land and real estate of the Water Company lying and situate Newton whereon is pumping station used purpose of pumping the raw water from Shoal Creek, the source supply in Newton County, into the settling basin in County, and that such appurtenances are exclusively therefore assessable and taxable only as constituting an inseparable integral part of the Water Com- pany’s real estate in Newton County. Although proceeding un- der review is an amicable one, in the parties agreed sense that the have upon the facts which the controversy depends, and have dis- pensed delay, expense, and technical forms of procedure which are incident to a action, by formal submission of *15 case, as authorized statute, supra, yet we are inclined to the

981 view that the controversy for judgment submitted decision and here- in is real actual, involving the exercise respondents right asserted disputed by which is appellant, and that the interests of appellant, on hand, the one and of respondents, on hand, the other adverse. We cannot say, the record before us, that proceeding presents the instant a mere determination moot or question, abstract not upon existing which is based facts or rights.

III. As we said, controversy have the instant arises out of the decision of this court State ex rel. Sedalia Water Co. v. Harnsberger, 94,Mo. (2d) S. “question W. 554. The in dif-

ference” between the appellant, on the one kand, and the respondents, on the other hand, proper application of the rule or lawof doctrine announced the Sedalia Water Company case proceeding. facts in the instant Appellant, Joplin Water Works Company, that, contends under the rule or doctrine announced in ease, the Sedalia Company Water appellant’s system distribution supply pipes, which are situate County, must be (for allocated purposes of assessment taxation) appurtenances as to the land and real estate Newton County, whereon is appellant’s located the pumping plant, which draws the raw water from the source supply Creek, Shoal Newton County, propels the raw through water supply pipes two into the settling reservoir or County. respondents basin that, contend under the rule or doctrine announced the Sedalia Company case, Water system distribution pipes supply Water Works which are situate County, must be (for allocated purposes of assessment and taxa- tion) as appurtenances to the land and real estate in the County, whereon is located the or principal main plant of Water Works Company, containing pumps machinery which propel purified and filtered through water system the distribution to the various customers of the Water Com- pany in of Joplin, and which or principal plant main alone system distribution physically connected. Our quoted court with approval, in the Sedalia (322 case Mo. l. c. 104), Bouvier’s definition of “appurtenances,” “Things follows: belonging’ thing principal, another pass as incident to principal thing/’ We also said in Sedalia Water Company (1. 105), nuoting case c. from Words and thins; Phrases: “An appurtenance is a with and used related to or dependent upon something else which is its principal.” What principal thing to which of the Joplin *16 belongs and to which Jasper(cid:127) County, it Company, situate

Works in. to our It clear minds the appurtenant? seems and incident is belongs ap- is system distribution which such thing to principal city the Company in plant the Water is main purtenant the the distribution plant alone County, which in with -Joplin, plant which contains connected, and physically system actually and is water filtered purified and propels the pumping'machinery the Com- the of Water system to customers through the distribution in Newton pumping plant city Joplin. The in pany system distribution with the physical -connection or has no actual propulsion or in the power no force furnishes Jasper County, and County pump- system. The Newton through the-distribution water .of distribution affixed to the or attached physically ing plant is not separable from the distribution separate system. physically It is connected with physically which is system, distribution system. upon land situate in Company, located of the Water plant main said, think, we cannot be well Joplin; upon plant, pumping located to the and incident appurtenant (cid:127)to be County pump- which Newton with in Newton of land a tract physical no has system Jasper ing plant the-distribution County land and conveyance of the Newton A or actual connection. judgment, would not thereon, our plant located pumping system: this, because conveyance distribution operate aas County, upon which is land, situate intervening tract separates of the Water plant principal or the main located Newton Coun- system- land from the the distribution dissevers perceive no We station. pumping is ty upon which located system in theory distribution upon logical which or reasonable and incident appurtenant to be deemed County can be held appellant’s which is located upon land in plant. pumping opinion Company, construes Works Joplin Water appellant, supra, announc- case, Company Water Sedalia court in of our system is a water distribution rule ing doctrine is situate and which plant waterworks particular incident to is disclosed So far as supply. water the source at located Water the Sedalia opinion in the contained of facts recital but operated Company owned case, the Sedalia Company located at seemingly was situate plant, which (cid:127)one seemingly contained plant That supply. one of water source from- the the -water to draw used were machinery which pumps water propel also used were which supply, source connected physically was system, which through the distribution appears that case, it the instant plant. In that- plants, and distinct separate operates two owns and pumping station plants which located a tract of land one supply source of on Shoal which is situate at the Creek Newton plants which County, and other of a tract of land which is situate with which system Jasper County plant physically alone con- nected, Jasper County machinery which contains alone propel through pumps the water the distribution *17 city Joplin. Company in case, the of In Sedalia Water our court the was upon separate not called to as to which of two determine plants system appurtenant. distinct the water distribution is Sedalia logic reasoning opinion Division Two in reflected of however, Company case, Sedalia Water is a water distri- system principal thing, bution appurtenant is and incident to a a main principal plant, thing or principal to which the distribution system physically in- annexed, is as to make it an connected and so separable integral thing. part principal opinion of In the Company Division court stated case, Sedalia Water Two of our “the water mains doctrine of the Iowa courts to be that rule plant city, laid in with the of a water the streets of a. and connected company, plant which the appurtenant to the tract of land of located, within assessed value is and therefore included cites opinion in Water land.” The the Sedalia case Equaliza- Water v. approval of Oskaloosa Co. Board of the case City Supreme Oskaloosa, Iowa, 407, tion of of 84 wherein the Iowa company hydrants of the water mains, pipes Court held that “the main to, with, where the appurtenant and taxable the real estate weight of remarking “the located,” court works are our own ’’ authority, reason, to with the Iowa rule. and of seems be Applying in the Sedalia the rule and doctrine announced thing principal to which the Company case, we conclude that incident is appellant appurtenant and is city Joplin, plant appellant the main of the County. It follows pumping and not the station Newton system in the appellant’s distribution from such conclusion that the purposes assessed, for the city valued and properly be estate, situate land or real taxation, part appéllant’s a as which is located County, upon Works Com- plant appellant, Joplin principal main or- pany. of Commissioner foregoing opinion is so much Seddon approved by

as is us. the whole dispose On in order to consideration, further following: to add controversy presented, we desire now 94, Mo. Harnsberger, v. In State ex rel. Sedalia Water Co. distrib- mains, etc., used to hydrants, pipes, court held that the water being consumers, ap- plant ute the water from the main plant located, main could which the on purtenant to the real estate being personal prop- estate separate from the be taxed not language: “The Iowa doctrine in erty. adopts The court of a in the streets water mains in Iowa is that the laid doctrine company are a water plant with the connected and therefore is located of land which the tract necessarily land.” It value the assessed within included pipes taxing water situs of such mains this that the follows from appurtenant and they are to which the real estate situs of is the actual that the situs regardless of the fact part, a they are may considerable distance hydrants extend mains, pipes and taxing district. different plant and into a from the main machinery supply pumps and mentioned the In the Sedalia case distributing pumps and as the land on tbe same tract Averelocated present case same. In the machinery one and the and were fact plant located so, supply holds, properly opinion distributing plant from the separate and distinct three or some of land located on different tract connec- physical no real there is other, and that four miles from each *18 except that distributing plant plant and the supply tion between the on a tract etc., located machinery, supply plant pumps, with its the County, pumps the raw water in of land on Creek Newton Shoal into a through large pipes emptying same forces it that creek and the County where is located Jasper in the tract land reservoir on raw which reservoir the distributing and from plant, purifying and there, into by pumps, located purified forced taken, is and water throughout extending distributing pipes through and and the mains city Joplin. the the Sedalia and under facts plaintiff under these

The contends that in pipes machinery, mains and plant, case, supra, distributing the County in Newton supply pipes, partly Jasper County, well as the Newton to the appurtenances all partly Jasper County in are and at County real estate and of that plant part supply and taxable as however, physical is such a hold, that there situs. We that are County plants that the two Jasper in usable break at the reservoir plant being supply point, the the separate one and severable at being the appurtenances, and other County its located Newton distributing appurtenances located plant and its pumping and Jasper County. distributing mains, separate plants These severable are city in the extending and located pipes hydrants to distributing on and real estate plant appurtenances to the reasoning, the By same located, as such. which it is and taxable Countv, and Newton supply supply station pipes connected with the Jasper to reservoir raw carry whose use is to water sole County supply Newton appurtenances the land station, and taxable as sneb and at that situs. No given reason is for dividing supply sueb pipes at county line where there no physi- cal break or severance in the use of the same. physical The and usable connection pipes these is with County the Newton plant and not plant. only possible The reason for making a severance of these supply pipes at county allotting line and part supply pipes appurtenance as an plant the supply part located there and the of such pipes County to distributing plant County, contrary, to the physical and usable connection, is part supply pipes are actually located in taxing one district, Newton County, part in another taxing district, Jasper County. holding, This however, contrary theory whole on pipe which such lines are held not taxable separately, only but appurtenant to real estate which on plant main located. In fact, case, Sedalia supra, it appears the main plant was located in Pettis County and city outside of the of Sedalia, and was located in School District No. 29, while the water mains, pipes hydrants were located in the N(o. Sedajla of Sedalia and in School District 200, where same attempted were to be taxed. court there mains, held that such pipes hydrants part were only taxing taxable dis- trict where the main plant, estate, was located not in city of Sedalia. Therefore, to county make a severance at the line merely pipe because the supply partly line is in Newton partly County, is principle. violative of this question

This seems to have been decided Appeal in the case of Des Moines Water Co., 324. Iowa, of Des Moines was into townships, taxing divided two each a plant district. The main company Township was located in Des Moines on land owned company there, pipes water but the mains, and extended into Lee Township. that, The court held purposes taxation, the water pipes mains and were land on which the main *19 Township properly was located Des Moines assessed Avere there, many and not in Township pipes Lee where the lines and actually were located. The court said: building, machinery think land,

“We are-all Avater-mains estate, though length real laid the whole of the mains are not Mjoines by appellant, extend Des into the lots oAvned yet Township, they appurtenant Lee to waterworks or main argument estate, part The that if the are real structure. mains ToAA'nship been which is laid should have there assessed Lee any estate, fact that their mains as other answered same acquire being appurtenant, their character to real estate conveyance pass incident waterworks, the works would conveyance they thing, any where principal without land need be made no assessment circumstances such are located. Under situated.” and lots are place where the except in the taxing authorities therefore, us, It seems supply against portion levy taxes power have no appurtenance same as to include pipes located whole of plaintiff. real estate to the New- supply plant located pipes mains is erro- court of the trial judgment this extent the County. To ton $5,000 deducting the valuation be modified neous should County. supply pipes part of the placed on that therefore, reversed is, trial court judgment of the judgment accordance to enter directions remanded with cause Ferguson, G., concurs. opinion. adopted by Sturgis, C., is foregoing opinion PER CURIAM:—The judges concur. opinion court. All Burlington Quincy Railroad F. & J. Chicago, Baker v. (2d) S. W. and Grant 535. Appellants. Marsh, May One, 21, 1931.*. Division 1931; 31, motion 1930, Term, March Opinion at October filed *NOTE: May Term, 1931. *20 April filed; at rehearing overruled motion