*1 Paving v. St. Louis Company, Appellant, Granite Bituminous Company 468. (2d) et a l . 55 S.W. Railroad River Meramec One, 1932. December Division Bryan, Williams, Gave & MePheeters Charles A. Powers appellant. *2 E, respondents. & Baron for

T. and Barth Francis

902 By this the lien STURGIS, plaintiff suit seeks to enforce C . paving Avenue special a tax bill Cartan street city County, Maplewood, class, a third in St. Louis ‘‘ along Avenue, line a wide center of Cartan strip of land feet Big line line of from Laclede Station road to the west the center óf ’’ description given This is in the tax bill on and Bend road. sued by petition enlarges description locating the 30-foot merely this strip Survey corporate within limits in United States and “lying being in Cartan Maplewood, Missouri, the center of extending Avenue, public street, from the center line of Laclede city,” Big road, Station road to line of Bend said west conveyed “being strip also as Louis Mera- same St. Company by Company” mec Railroad Cartan Real Estate River by plat deed, and shown on the Cartan Sub certain recorded “strip 30 center of Avenue.” division as a feet wide Cartan length strip approximately is feet. enforcing case, presents proposition therefore, novel thirty-foot improvement against special tax bill street ground improved is shown the middle street. all plat proceedings on the and in evidence being sixty wide, improve had to the same as so that there is a thirty-foot strip of fifteen on either side of the feet wide center occupied strip sought largely be taxed. This is sidewalks. thirty-foot occupied parallel also two lines shown that *4 operated by now of railroad owned and United defendant Railways acquired Company, which same after was made. brought way:

This was in situation about The Cartan Real large Company platted Estate a tract of land which owned it later city an addition to the of Subdivision, Maplewood, as Cartan but conveyed, by doing granting it sold and the usual clause before so of warranty deed, to St. Louis & Meramec a River Railroad Com- ground question thirty-foot strip of now in “for pany, right a with way privilege place . . . to poles of roadbed for and car- necessary wires rying said overhead of railroad outside of said right way and within 10 feet of side of of either same.” Said deed ‘‘ provision: party part The said of the first also contains this reserves any use, right, time, public graded, to dedicate to when at as a wide, 60 less than feet the outer of street, strip not lines said strip a parallel from and the center equidistant with line to be of said way. public dedicated, use as a street when apply Said to to of all

903 the outer dedicated limits of tbe so to tbe outer space tbe from dedica- party, but said of second tbe tracks tbe of tbe ties under ends priv- for and use roadbed subject right- way, tbe tion shall be party Said granted party part. tbe second to tbe ilege herein will be other obstructions agrees that no fences or part tbe second intersecting in case edges strip, and placed sides or of said at- tbe a in that case dedicated, then and be made streets shall hereafter main- way tracks shall be and passageway across said free part.” of tbe second party tained said way began ground

Tbe use of plat Cartan Subdivision time, 1896, later the years at and three that ‘‘ 60 feet Cartan Avenue and recorded. It recites that executed forever, etching, hereby dedicated to the use wide, shown stipulations, and subject to the and other conditions Company Louis of Cartan Real Estate St. described deed St. Company, 94, page 619, in book Meramec Railroad recorded merely 60 County plat a street feet wide Louis records.” shows Big Avenue, extending Cartan and from Bend road marked east west frontage road, Station on each side. to Laclede and lots 50-foot much is manner and extent of the use Not shown as to the prior steps Avenue were taken Cartan but at time city Maplewood by grading, paving, improve this street grade improve A guttering, curbing same. resolution to duly passed, Cartan Avenue was it is set forth that grade Big necessary deems it Cartan Avenue from Bend road except portions Laclede Station “for the full width such road occupied by and ties of the St. Louis said street as are the tracks assigns, improve Company, & Meramec River Railroad or their and to superstructure laying for the by preparing same roadbed roadway for width of inches between the paving thereon railway gutter side, outside rail of the street tracks and the on each by constructing upon roadway . . each side of the of said . and granitoid gutter . street a combined curb and inches wide. . . grading expense said shall be done at the owners abutting upon improvement, and shall property said be included paving with the the cost the same contract thereof levied as property.” special tax said thereupon providing duly grading

An ordinance was enacted paving Cartan Avenue much the same terms the resolution *5 gutter curb and specifying and the construction a of two “and feet roadway gutter each paving point the. between the outside of and a rail of the street car one foot outside outside tracks of the St. Company, assigns, & Railroad its Meramec River successors and Louis the center of street.” present, occupying payment said As for at as improving said street cost of that “the whole provided it same, against the special assessment shall be levied as provided herein points said street between abutting upon either side of property statute, and provided by in the manner same as pay for the named improvement acceptance of the work of completion and upon the lot, against each therefor issued special tax bills shall be said abutting upon improvement, ground said parcel or tract payment full for to the contractor shall be delivered tax bills said City any part of be liable for event shall the work, and no said Louis “The St. ordinance reads: said cost thereof.” Section assigns are and its successors Company, River Railroad Meramec grade of street the bring established said hereby requested to to the space pave the said by and ties and to occupied their tracks space equally good pav- or as them in the same occupied and used so paving of the remainder of provided ing as that herein comply company declined to roadway The railroad of said street.” request. with this im- city make these contracted with the plaintiff herein provided that on ordinance it is and in the contract and

provements city there- council “shall acceptance of the work the completion and against special levy the same as upon and assess ordinance along ground fronting abutting upon or or lot, or.parcel tract each Big Station Bend road and Laclede Cartan Avenue between the said owner owners thereof.” road, in the name of the or having made, delay improvements There was considerable get company city the railroad caused'by the fruitless effort of the 1915, way. completed work was grade pave and July 28, city, passed an ordinance accepted against lots, parcels “levying, special all the tracts and assessment abutting Avenue, ground on each side of Cartan thereon'” council improvement, total cost of the and directed “against respective special property tax bills owners of to issue setting abutting improvement, specifically said out the owners thereof, giving block, front foot each lot and the subdivision paving curb and price separately grading for the and for the separately, agreeing gutter, thereof all in de- with the total amount engineer.” report of tail with the against thirty-foot strip, rail- then issued tax bill was

No question, it right way now in and was not taken into account road lots, apportioning costs of tracts abutting fronting or on Cartan The entire parcels Avenue. designated sixty plat on the of Cartan Subdivision as Cartan Ave- being improved street, fronting lots nue was taken sixty-foot fronting on the south of street were the north and those

905 fronting or land parcels of only lots, being the tracts taken as abutting on Cartan Avenue. subject-matter of the plaintiff tax this were

The so issued to bills Meryl Paving Co., which the ease of Co. v. Granite Bituminous Realty Mo. S. appeal reported reached this court on fronting 904. In platted W. ease a number of lots that the owner of to this on Cartan had been issued Avenue bills plaintiff brought in payment to have same improvement, for this suit adjudged among others, on “a ground, void the thirty wide, extending through- through middle the of the (street paving) out the entire work and the distance covered therefor, charged assessment, contract was not in the nor included any part of the costs.” was also claimed that the assessment It confiscatory. unreasonable, oppressive, as made was This court sustained the first of these contentions and the tax bills void. declared thirty-foot strip along to this street,

As center the of the court company said: “It evident that title at inquiry. stands originate permission door It did not city lay its rails operate upon public street, its cars voluntary there was no acquired by street there. It grant private from a owner, years Company, the Cartan Real Estate before the street was The conveyed dedicated. deed its terms fee. . . . present owner is of this therefore seized fee thirty-foot strip of incorporation land for the uses incident to its to the extent deed, indicated the terms of its an and also of ease- purpose ment for the setting poles its on immediately the land adjoining . right it. . . The deed reserves the dedicate sixty-foot strip Avenue, now described as Cartan dedication such ‘to apply space to all from the outer limits so dedicated to the outer ends of ties party.’ under the tracks of the second deed, copied which is statement, in full our seems be the product pains any of infinite to avoid the inference of city thirty-foot strip to interfere in manner with the question. dedicate, itself, and the applied only dedication to two strips distinct lying land either side be- tween the ties railway company ends boundary and the street. The dedicator had no title in of way, and the dedication purport did not to include it.”

As to the proceedings force and effect of the taken by Maplewood pave improve Avenue, Cartan the court further said: “The ordinance under which this was made care- fully conformed condition of the title as we have it. stated It provided ‘paving roadway gutter between the of each outside point and a one foot outside outside rail of the street tracks car Company,

of tbe successors St. Louis Meramec River Railroad assigns, present occupying at tbe center of said time tbe ’ will road- provides side. for two distinct each be seen that this be *7 ways, strip, of which would on each side of tbe railroad each one nowas room purpose almost useless for the of 'travel because there standing in front vehicle pass pass vehicles to each other to or in Each was a of a mile of a on the street. third residence passed length. was appears It from the the record that ordinance arrangement, in be made expectation that in that some could form railroad pavement covered the for the of that half of street the the by charging . . it to tracks. . This was made assessment hybrid exclusion property owners of side of to the on each street railway of of this assess- property propriety in the middle. The provisions the statute under which ment must be of determined property . railroad is no it was . . fact that this made. portions improved, part street, of the of the two but borders on each them, they are worthy is connection of Without between notice. only. North Cartan Avenue united name one of them named Were legal Avenue, situation, and the from other South Cartan standpoint, would be the same.” thirty-foot part not

Having way was thus held that this of private as property of the street but owned to be used that same way, railroad then considered and held of the court fronting meaning was “lots tracts of land within of terms ’’ abutting alley as used in our improved, on the street or statute pay- relating issuing special tax bills special assessments and 1909, as paving, 9254, ment of Section Revised Statutes under amended, 337, Laws force at the time this page im- In said: “Did the was made. connection the further this court along private which provement single paving of a line consist of liability right way could extended, of the no one doubt the railroad statute, in this express words used its owner taxation under distinguish yet situation nothing principle there would be railway company has de- from the before us. In case one this right way private owner liberately from the purchase elected it precisely as for its use. stands of the land fee own exclusive upon dedicated been afterward would stood had entire street have accordingly that this de- it.” court held along one side of thirty-foot way, liable was fendant, owner of this along of the abutting or both proprietor one burden of taxation as if extent as roadways “to the same improved either side thereof on the land had purposes horticultural incorporated it had been conveyed as orchard.” been to it for use an Realty Company Meryl in the On tbe rendition the decision suggestion, supra, plaintiff’s at ease, Maplewood, this engineer the costs apportionment caused its new to make a taking thirty-foot improvement, account into roadways. abutting on narrow property each of the two issued By duly an tax bill now passed, ordinance sued July 26, thirty-foot 1920, against ground for an amount strip of improvement. inis excess of one-half total cost

A number of bill is but why void, reasons are advanced this tax necessary it will not be at once met notice all of them. We are question largely the fact paving that the street constructed on private property, very only that, property and not but on the Meryl seen, which the is levied. As have this court in Real- we ty Company thirty-foot land used as case held that right way abutting is not part private street but property hybrid the double track street. The width of double *8 railway, street measuring ties, byis actual from the outer end of the pavement actually measurement 18.96 feet. as laid The of the street to the of extends end of on actual width these ties either side. The driveway the north from the north curb of the ties under to the end railway the feet, north track is 10.65 the of the and width south driveway, measured in manner, the same is 10.70 feet. Under the paving ordinance, driveway the width of each on side of the either right railway way of was be nine feet two inches and extend to to within one foot ties. of the ends the the from of width of street feet, curb curb 41.31 being to is the balance of the street used for side- walk. Deducting right way, thirty feet, the width of the of railroad the total only from width from to 11.31 curb, feet of the curb leaves public that is paveiment, street covered the one-half or 5.65 feet right way. pavement, each side of the the railroad The balance way. approximately one-half, right railroad on the It is well payment settled tax bill in street that a issued pavement private property, constructed on whether owned the defendant in the else, tax bill or someone or to a extent substantial property, on private Handlan, is void. It was so in v. held Kirkwood 92, 98, Mo. 225 S. W. “The 692, principal where the court said: alleged ownership by defense the one- defendant east thirty sixty half strip improved. feet which’was If wide owned street, improvements defendant the east half of the were private property made on against the tax bill and issued defendant is void.” City Springfield

In Eisenmayer, 297 460, v. S. W. this is said: public improvements “It is well settled that where are constructed grounds, in private inviUm on against tax bills issued the owner of construct- improvement so payment for the abutting property, in ed, void.” are Baxter, 180 Mo. v. question Springfield in is well considered Mo. 341. Naylor Harrisonville, 207 40, see, also, v. App. 45, and of Cartan argued sixty feet strenuously entire It is deed interpretation of the proper public street under a Avenue is railroad Company defendant Real Estate to the from the Cartan Addition, none of therefore subsequent plat of Cartan says: plaintiff reply brief, In its private property. is on company railroad in to the course, grantor “Of what the deed thirty-foot right to dedicate the to was to reserve the meant do right subject to the company public railroad as deeded to the there thereon,” for operate railroad company out right the land reserving a in dedicate was no sense or need unquestion Such is way street. side the having city proceeded in ably which theory issuing doing for so levying in costs paved and assessment against property owners on the first bills for entire cost question, how sixty-foot That street. supposed the two sides of this Meryl ever, Realty Company has been settled the case of the court said: plaintiff, 329, 338, 223 S. W. where Mo. statement, to be deed, copied in our “This full seems any right of the product pains of infinite the inference avoid question. the 30-foot manner interfere only to two dedicate, itself, applied and the dedication between lying strips distinct on either side of the boundary railway company the ends of the ties of the way, the dedica street. The dedicator had no title *9 reading it.” A of that entire case purport tion did include not to thirty-foot strip in the unquestionably it that the shows that holds as property by private of Cartan is owned defendant center Avenue way. theory bill now sued right railroad of On alone the tax a that is suit to same on was issued tax bill this enforce and such it) thirty-foot (all private property against of as of suit, plain party This a that as was defendant. defendant was not correctly deciding tiff, accepts ownership of the but as same is There thirty-foot strip in the of Cartan Avenue. middle that bill suit is on holding, no basis for even if tax and this right way thirty has been narrowed theory, that of of defendant’s by actually car tracks. covered two street to the nineteen feet may say We Statute of Limita also in this connection that run a possession does not tions based on adverse user and right permissive way, public use, use of itself a and mere parts in ex- by public, except possibly of same individuals or the Ry. eases, estoppel. treme does not work an Louis-San Francisco [St. Dillard, 1154, (2d) 1037; 43 W. 1034, Co. v. Mo. S. St. Louis- Ry. King, (2d) 94, San Co. v. 329 Mo. W. Francisco S. 99.] The trial held conrt also the tax bill and the ordinance au improvement thorizing question being the street void as unreason point able and On oppressive. the trial court in a memorandum ‘‘ opinion roadway improved hybrid said: strips These are too nar permit pass pass row to two each vehicles other. To another ve necessary it'is for roadway hicle the traveler to leave the and become trespasser upon right defendant, physical way and the right way conditions permit of said do not the use of same with safety. notably Streets are intended serve a means of access to abutting property, thoroughfare. but also to impossible afford is roadway for in traveling vehicles use either If both directions. roadway each were direction, intended travel in one it is still impracticable, for the reason that street would be obstructed slow-moving standing either or vehicle. A parked in vehicle of a roadway compel front house will obstruct the travelers to trespassers right way. become on . . . streets abutting as now not property constituted do benefit the owners. unjust

assessment arbitrary, and in substantial excess possible abutting property. Special benefit to the assessments are predicated theory property sustained which is as improvement, sessed is benefited there an unless actual improvement which can function as such, property be cannot city Maplewood assessed. The should proceeded not have with the improvement protected abutting until it had property owners agreement railway company providing some with for the pavement way, or, of its an it agreement, absent such should proceeded not have until it had evoked power widening of eminent domain and taken Maplewood the street. The had no rely upon a mere request railway company. duty made It is the of a court to an upon showing ordinance unreasonable .hold of facts which makes ordinance Under the said unreasonable. evidence this case the upon special finds that ordinances which said bill court unreasonable, founded are and therefore void.” finding is in facts accordance with the applies evidence and they taking

to the conditions as exist without into account the fact driveway that each located about one-half is. defendant’s way. driveway If only such is confined to the street, it is *10 five wide and would be of if little, any, about value a public street. questions presented. The trial necessary to consider other not void, judgment correctly holding the tax bill and the

judge ruled Ferguson Hyde, GG., affirmed. concur. from is appealed PEE, The foregoingopinion by Sturgis, C., adopted CURI A M: judges opinion of court. All as the concur. Marguerite Louis, of St. Terminal Railroad Association Cox v. (2d) Corporation, Appella 55 S.W. 685. n t. One, 20, 1932. December

Division