Prescott, Wright, Snider Co. v. Mellody-McGilley Funeral Home

118 S.W.2d 499, 233 Mo. App. 332, 1938 Mo. App. LEXIS 30
CourtMissouri Court of Appeals
DecidedJune 13, 1938
StatusPublished
Cited by1 cases

This text of 118 S.W.2d 499 (Prescott, Wright, Snider Co. v. Mellody-McGilley Funeral Home) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prescott, Wright, Snider Co. v. Mellody-McGilley Funeral Home, 118 S.W.2d 499, 233 Mo. App. 332, 1938 Mo. App. LEXIS 30 (Mo. Ct. App. 1938).

Opinion

SHAIN, P. J.

— In this action the plaintiff seeks to recover on special tax bills issued' against lot 1, block —, Linwood Park, Kansas* City, Missouri.

Plaintiff ’s petition is in two counts.' The first count is for- $919.02, based upon a special1 tax bill for proportionate share of ** cost for-paving Linwood Boulevard, a public street of aforesaid city, from the east curb line" of Gillham Road to the south prolongation of the east line- of Benton' Boulevard, -north of LinWood Boulevard; The *333 aforesaid public improvement was provided for by ordinance No. 53550 of Kansas City, Missouri, and effective. February 28, 1927.

The second count of plaintiff’s petition is for' curbing on Linwood Boulevard and to the same points as designated in count 1. Said improvement was provided for by ordinance No. 53549 of aforesaid city and effective as of same date as designated in count 1. ■ Amount of curbing bills is $100.27.

There is no question raised as to legality'of ordinances providing for said improvements, no question as to faulty or wrongful construction, and no question raised as to plaintiff’s-having acquired title to the tax bills. Plowever, the defendants' by answer to plaintiff’s petition make general denial and plead special defense that lot 1, supra, does not abut upon Linwood Boulevard, and is not, therefore, taxable.for said improvements. The defendants plead in defense the “Front Foot Buie” as provided by article 8 of the Charter of Kansas City, Missouri, and state that subdivision A of section 262 of article 8 of the Charter of Kansas City, Missouri, defines the-“Front Foot Buie” in language as follows, to-wit:

“The Front Foot Buie, which shall be held to mean that the required sum shall be assessed and charged agáinst the several lots, tracts and parcels of real property lawfully chargeable therewith abutting upon both sides of the highway thereof improved, in proportion and ratably -to the frontage or abutment thereon of such respective lots, tracts and parcels of land. ’ ’

The defendants further answering state:

“. . . that the assessment of said tax bills and each of them against lot one of Linwood Park and against defendant was erroneous and void and that said tax bills are invalid for the reason that defendant’s said property does not front on Linwood. Boulevard or the portion thereof improved within the meaning of said ordinances and; charter provisions; that said property fronts upon Euclid Avenue, with its entrance approximately 150 feet North of the North line of said Linwood Boulevard, and that the defendant does not have the right of ingress or egress to said Linwood Boulevard over and across the intervening plot of land which is about 85 feet in width, -lying-between the South line of defendant’s said property, and the North; line -of Linwood Boulevard; that the said plot of ground though originally condemned for street or boulevard purposes has never been used for that -purpose but is now owned by Kansas City, and is being used by it as a park, and that it is improved by the planting of grass, ornamental shade trees, and by the installation of a uniform stone Santa Fe Trail marker thereon.
“Defendant further states that said tax bills and each of them so wrongfully assessed as aforesaid constitute a cloud upon the defendant’s title to said property- which should be removed.”

The plaintiff joins issue to answer of defendant by general denial.

*334 The cause was tried by the court without a jury on an agreed statement of facts.

Pertinent to matters before us for review, the agreed statement of facts, among other things, states as follows, to-wit:

“. .. . Between the sidewalk space on the north side of Linwood Boulevard and the sidewalk space on the east side of Euclid Avenue there was left a plot of ground about 100 feet running north and south and about 80 feet running east and west. This plot was not paved but was planted in grass and has three shade trees near but inside the sidewalks. The city has not yet paved this tract, and did some time prior to 1917 install a uniform stone marker in the middle of it containing data on the old Santa Fe Trail or Westport Road which at one time ran across this corner. The defendant’s property abuts this plot of ground on the north, said plot being designated as ‘B’ in the map, Exhibit ‘I.’ Defendant’s property is used for a Funeral Home and Undertaking establishment. Its only entrance and egress is from Euclid Avenue by a driveway, and it is approximately 150 feet from this entrance on Euclid Avenue to its intersection with Linwood Boulevard. The city has refused to permit defendants to construct a private driveway for ingress and egress -over and across said unpaved tract shown as ‘B’ from defendant’s .■south line to the said Linwood Boulevard.
“At various other places of intersection of Linwood Boulevard with streets and boulevards running north and south, the city has condemned and rounded off the comers in a wide and expansive manner; at Main Street the boulevard was widened and the corners at the northeast and northwest rounded off and paved far back making a wide entrance into Main Street; at Robert Gillham Plaza and at Gillham Road extensive land was taken on all four corners making wide and extensive intersections with Linwood; at The Paseo and Linwood, the corners were widened and paved far back, with a traffic lig'ht tower high in the air erected in the middle of the intersection. The development and outlay of the boulevard at the intersection of Euclid Avenue and Linwood Boulevard is, in general, similar to the general plan of development along the entire course of said boulevard, with the exception that the city has not actually paved all of the space which was condemned at the. northeast and northwest corners of said Linwood Boulevard and Euclid Avenue. Linwood Boulevard has been beautified with wide parkways and ornamental trees along its entire course. Highway No. 40, a federal highway, is routed over Linwood Boulevax'd from the eastern extremity of the boulevard, and all its traffice is carried over this street, which, together with the normal city traffic, makes Linwood oxxe of the most heavily traveled boulevards ixx the city.
“Between Benton Boulevard on the east and The Paseo on the west, n distance pf 15 blocks, there is no outlet to the north off of the boule *335 vard which carries any appreciable amount of traffic. Most of the streets off of Linwood to the north between these points are about 30 feet in width from curb line to curb line, inside paving. The paving at Linwood and Euclid is, in general, improved similar to the general scheme and plan of the boulevard along its entire course.
“7. It is agreed that under the Charter of Kansas City, at the time this land was acquired for the boulevard, and at the present time, the Board of Park Commissioners makes the recommendations to the city council for the acquisition of boulevards, streets, parks, etc., which are in park districts, and such boulevards, streets, parks, etc., are under the jurisdiction of such department as to their maintenance, upkeep, repairs and the like.”

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Bluebook (online)
118 S.W.2d 499, 233 Mo. App. 332, 1938 Mo. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prescott-wright-snider-co-v-mellody-mcgilley-funeral-home-moctapp-1938.