Kennard v. Eyermann

182 S.W. 737, 267 Mo. 1, 1916 Mo. LEXIS 18

• Court: Supreme Court of Missouri
• Decided: February 15, 1916
• Status: Published

Opinion

WALKER, J.

This is a proceeding to enjoin the collection of special tax bills issued by the city of St. Louis to the defendant O. Eyermann & Bro., contractors, who reconstructed Waterman Avenue between Kingshighway- and Union Boulevard, public streets of said city.

The charter of the city of St. Louis provides how the benefit district which shall bear a portion of the cost of such improvements shall be fixed; section 14, article 6, of the charter in relation thereto being as follows:

“The districts herein referred to shall be established as follows: a line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district,” etc.

Waterman Avenue, on which the work was done, runs from east to west and is parallel with and quite a distance north of Forest Park.

Plaintiffs, who were the owners of property fronting on Portland Place (a private “Place” within the benefit district)., attack the validity of the tax bills and claim that the Board of Public Improvements, in determining the amount of tax required to be paid by the respective lots in the benefit district, failed to include the entire area legally subject to the tax, and therefore the bills ag’ainst their lots are for excessive amounts.

On the north the board drew the line midway between Waterman Avenue and the next street north. This plaintiffs concede. On the south the board drew the line midway between Waterman Avenue and Lin-dell Avenue, claimed by the board to be the next street south. But plaintiffs claim that Lindell Avenue is not a street within the meaning of the charter, and that the hoard should have drawn the line midway between Waterman Avenue and Berthold Avenue, or possibly Clayton Avenue, a street running through the park, and that the district should thus have included a large part of Forest Park.

Plaintiffs concede that the contract was properly let and the hills were otherwise properly issued. The only ground urged by them is as to the validity of the board’s action in fixing the taxing district.

The contract for the work was let and the special tax bills were issued in 1910 and the status of Lindell Avenue as of that date must be determined. Its history is as follows:

William D. Griswold was the owner of a tract of > eighty acres lying immediately north of Forest Park, bounded on the east by Kingshighway and on the west by Union Avenue. In 1876 Griswold conveyed to the county of St. Louis a strip of fifty feet wide off the south side of said eighty acres, adjoining the north line of Forest Park and extending from Kingshighway to the St. L. K. C. & N. railroad. This strip now is Lindell Avenue, the street in question.

The deed to the county was for the following uses and purposes: “To have and to hold the same to said St. Louis County for the uses and purposes following, viz.: That same shall be incorporated into and be held, improved, used and controlled as a part of Forest Park and shall be subject to the jurisdiction and government of the commissioners of Forest Park in same manner and to same extent as pertains to the general territory and property of same. That said board of commissioners shall cause to be constructed a carriage avenue over the premises described, embracing part of the present north line of the said park adjoining the land hereby conveyed, such carriageway to be not less than fifty feet in width extending from Kingshighway to the line of said railroad, the same for the width of fifteen feet to be completed after the best manner of the other carriage avenues of said park, and for the balance of width to be graded in conformity with the said fifteen feet of width so as to form in connection with same a common avenue, that they shall grade a foot walk along the north side of said avenue corresponding with the level or elevation of same and fronting the said tract of eighty acres, and during the current winter or coming spring, plant shade trees along the curbing or border of said foot walk of such kind and in such distances as to the said commissioners may seem expedient and in harmony with the general improvement of the park. And also said Griswold and persons holding' under him, owners or occupiers of the land and lots fronting upon said avenue and foot walk, shall have outlet and inlet from and into their premises and right of temporary stoppage in front thereof, for all such carriages and teams as by the regulations and rules governing the park -may be allowed to run in the same, and that the streets which may be laid out upon the said eighty -acres may enter and be connected with said avenue, an<f that said streets shall be accessible through the same for all such carriages and teams.”

Upon the separation of the city and county, the strip passed to the city.

Griswold owned the tract until May, 1887, when he conveyed it to the Forest Park Improvement Association ; the deed specifies the metes and bounds of the entire eighty-acre tract. In May, 1888, the grantee platted the tract and laid it out in blocks and lots. The association also dedicated to the city, for the same uses, a short strip fifty feet wide, adjoining the railroad tracks, and extending the strip dedicated by Griswold through to Union Boulevard — thus making a continuous strip from Kingshighway to Union Boulevard. This fifty-foot strip from Kingshighway to Union Boulevard is designated on the city plat as the “Park Road.” The part dedicated parallels the railroad tracks and runs diagonally into Union Avenue. Subsequently the city condemned as a street a strip fifty feet wide, extending the Griswold strip on a straight line from its western terminus to Union Boulevard, and the strip west of Union Boulevard was also acquired for uses similar to the uses created by Griswold, and the same was similarly improved and now makes one continuous straight street from Kingshighway to Skinker Road, although the diagonal piece connecting Union Boulevard with Lindell Avenue is also used as a street.

Soon after the improvement was completed the property was placed on the market and the association disposed of the lots for residence purposes, and all lots fronting on this strip were described as having so many feet fronting on Park Road. In 1903 the name of the street was changed, by ordinance, from Park Road to Lindell Avenue,, and since the plat was filed, in all conveyances of lots fronting on this street, they were described as fronting on Park Road (prior to the change of name), and thereafter as fronting on Lindell Avenue.

After the association acquired #the property, under permit from the Board of Public Improvements it installed a main sewer, water and gas mains therein. The street was also paved, and from time to time, as lots were sold, residences were erected and the owners were granted permits by the sewer department to connect with this main sewer, and by the street department to connect with the water and gas mains and to construct granitoid sidewalks in front of their premises.

In 1889 the city refunded to the association the amount expended by it for the water main and took it over as part of its system, and also the sewer main as part of the district sewer and relieved the property from, special taxation for district sewer purposes.

The city also installed lamp posts for street lighting and fire plugs for fire protection. The lots have all been sold and improved with residences. The houses are numbered,, as on other streets.

In the plat-books in the Assessor’s office, in the Street Department and in the Special Tax Department, the strip has always been carried and treated as a public street.

When Union Boulevard was reconstructed, Lin-dell Avenue was treated as a public street and the special taxes were issued on that basis. When Kings-highway, extending north of Lindell Avenue, was widened, Lindell Avenue was again treated as a public street and the tax bills were issued on that basis. At no time in any of these departments has Lindell Avenue been treated otherwise than as a public street.

The Police Department patrols this street as any other, although the park itself is patrolled only by employees of the Park Department. There was evidence that Lindell Avenue was kept in repair only by the Street Department, but there also was evidence that the Street Department did so only at times when the Park Department was short of funds and that the Park Department at other times also made repairs.

Lindell Avenue has always been sprinkled by the city, as other streets; the advertisements and contracts call for its sprinkling, and the property fronting on the street has always been charged therefor by special taxation, the same as other property fronting on streets in the city of St. Louis. For a number of years the street has been oiled, which eliminates sprinkling, but the sprinkling taxes are levied as before to pay for the oiling instead of sprinkling.

The street has at all times been used for every purpose for which a‘public street may be used, except that after 1907 or 1908 the Park Commissioner ordered that no heavy traffic be permitted on the street, and since that time an effort is made to keep off heavy traffic, except such as is necessary to supply the residences on the street with coal, ice, building material, etc. Such heavy traffic is now and has always been permitted. There was evidence also that only heavy traffic intended for the residences on the street was permitted prior to 1907, except during the World’s Pair period.

Lindell Avenue is a continuation of Lindell Boulevard, an-established street, long in'use before Lindell Avenue was dedicated, and excepting a slight jog at Kingshighway) it makes one continuous street from Grand Avenue to Skinker Eoad — a distance of three or four miles.

Upon the facts above set forth the circuit court found that Lindell Avenue is a street within the meaning of the charter and that the Board of Public Improvements was right in fixing the midway line between Lindell Avenue and Waterman Avenue as the southern boundary line of the benefit district. Prom the judgment dismissing the petition, plaintiffs appealed to this court.

Is Lindell Avenue a Public Street? — The sole matter at issue is whether Lindell Avenue, between Kings-highway and Union Boulevard, is a street within the meaning of the charter; if so, then the judgment of the trial court which denied the right of relators to the injunctive process herein prayed for, should be affirmed; otherwise, reversed.

The title to the strip of ground now designated as Lindell Avenue, between the limits stated, was conveyed to St. Louis County (now city) by William D. Griswold in 1876 with stipulations as to the use to which the ground was to be put by the grantee, viz., in general terms, that it was always to be used as a “carriage avenue.” While it was to be a part of Forest Park, it was to be constructed and maintained as a carriage avenue, by which the grantor meant, not merely a passageway for carriages, but such a highway as would afford the occupiers of lots fronting on said avenue egress and ingress to and from their premises “for all such carriages and teams as by the regulations and rules governing the park may be allowed to run in same. ’ ’ This, as well as other terms in the grant, is indicative of a purpose to dedicate for a public use. [Hannibal v. Draper, 15 Mo. 634.] There is no claim that the city, which became invested with the control of the street as a successor to the county upon the adoption of the Scheme and Charter, has ever attempted to divert the use of same to other purposes than those designated by the grantor, but on the contrary, all the official acts of the municipality, in whatever department exercised, have been in recognition of and in conformity .to the terms of the deed of grant. These are set forth in detail in the statement and their repetition would serve no useful purpose. The fact that the strip granted is by the terms of the deed subjected to the “immediate government of the commissioners of Forest Park” means such regulation as may be exercised by the commissioners in the control of a public street — nothing more. For such purpose was the grant made, and an attempt to exercise other control by the park commissioners would defeat the very purpose of the dedication. In short, the street, or as now designated, Lindell Avenue, must always be open to the public as a highway under the limitations stated; and the fact that it remains a part of the park detracts in nowise from its use as a street, nor is it in any manner inconsistent with its defined character as such. 'It is too well established to admit of argument that land dedicated for street purposes cannot thereafter be diverted for park purposes. Under any reasonable construction of the grant, therefore, the strip must remain a highway, and it was so accepted and has uniformly been so regarded by the city. This fixes its status so far as municipal affairs are concerned. [Collier Est. v. Paving & Supply Co., 180 Mo. l. c. 387.] Lindell Avenue is not the only instance of the establishment of a public street in Forest Park. There are others, not necessary to be enumerated, which, upon their dedication, became permanent in their nature, free from change by the park commissioners, but to an extent subject to their control, as is that part of Lindell Avenue in question, but nevertheless subject to the general control of the city; and unlike drives or roads, which may be abolished or changed as the judgment or taste of the. commissioners may dictate.

It was contended that the city had used the avenue, for general street purposes; this, if true, and in viola-, tion of the terms of the grant, would avail appellants; nothing, because evidence in support of this contention would simply serve to show a further dedication by the city to public use. The establishment of permanent improvements on said street by the city ini accordance with the demands of modern municipal life, such as paving, lighting, sewering and placing water mains therein, in nowise conflicts with the terms of the grant, but constitutes further evidence of the permanent public character of the street. The knowledge and acquiescence of the grantor in this work is further proof of his intention to dedicate this street for public use in all that the term implies. It is established that the intention of the owner, to dedicate for a public use may be shown in various ways, and his approval of the city’s action in this case may well be classified as one of same. [Brinck v. Collier, 56 Mo. l. c. 165; Price v. Thompson, 48 Mo. l. c. 365.]

After all, the real question is not what is seemingly admitted, viz., has Lindell Avenue been established and dedicated as a public street; but has it been so dedicated as to authorize the Board of Public Improvements to designate it as a boundary in the deter-ruination of a special taxing district. That it has been established as a public street for general purposes, both' by private deed and public recognition, the facts sufficiently show. This character having been established, the Board of Public Improvements, under the fourth' paragraph of section 14 of article 6 of the former charter of the city of St. Louis, is authorized to designate it as a boundary determinative of a district for special taxation.

Arguments as to strict construction of a grant and what technically constitutes a dedication; what is “park use;” or the extent of the separate government of the Forest Park commissioners, as contradistinguished from the general control of the city of St. Louis.; and the claim that the grantees under the Gris-wold deed must be confined literally to the terms of same, have but little substantial weight in the face of the many cogent facts to establish the dedication of the. strip as a street and its recognition and adoption as such by the city.

We have reviewed the numerous cases cited and discussed by counsel for appellants as sustaining their contention, but find no substantial merit in them. We therefore hold that the judgment of- the trial court denying the right of appellants to the injunctive relief prayed for should be affirmed, and it is so ordered.

All concur.