Brosnahan v. Pitcher

JOHNSON, J. Action to enforce the lien of a special taxbill issued by Kansas City in part payment of the cost of grading Thirty-first street from Bales avenue to Cleveland avenue. By agreement of the parties, a jury was waived, the cause was submitted to the court on an agreed statement of facts, judgment was entered for plaintiff and defendant appealed. The issue presented by the pleadings and agreed facts is the validity of the assessment against the property of defendant. Facts material to this issue are as follows: The ordinance initiating the improvement was enacted November 25, 1902, and provided for the grading of the south one-half of Thirty-first street from the west line of Bales avenue as produced from the north to Cleveland avenue. The cost of the improvement was assessed against the property on both sides of the street between the points mentioned. The property of defend [662] ant on which the assessment was levied is on the north side of the street. In 1889, Thirty-first street was known as Springfield avenue and the center line of that thoroughfare was a part of the southern boundary of Kansas City. In that year, the city by ordinance, caused the north half of Springfield avenue to be graded, assessed the whole cost thereof against the property on the north side of the avenue, and defendant paid the special taxbill issued against her property. Afterward, and before the grading under consideration was provided for, the city limits were extended southward to include within the municipality Springfield avenue, and its abutting property on the south, and the name of the street was changed to Thirty-first street. The charter of Kansas City in force when both improvements were authorized and made provided that the cost of street improvements “shall, when the same is to be paid for in special taxbills, be apportioned and paid as follows, viz: the cost of all grading, including the grading of sidewalks, shall be charged as a special tax on all lands on both sides of the street, avenue, or public highway or parts thereof graded.” Should we sustain the present assessment and hold the taxbill valid the effect would be to impose on the owners of property on the north side of the street the burden of paying three-fourths of the cost of grading the entire street, and to relieve the owners of property abutting the south line of the street of one-half the burden which in all equity and fairness should be borne by them. The proposition of the plaintiff that this should be done is unjust and unreasonable on its face and will not be entertained. We do not agree with the learned trial judge that the payment by defendant of the taxbill issued for grading the north half of Springfield avenue was voluntary, not compulsory. That assessment was valid and defendant was compelled to pay the taxbill to free her property from its lien. It is true, the charter provides that a special assessment [663] to pay for a street improvement must be levied against tbe property on both sides of tbe street and contains no express provision for improving a street where tbe abutting property on one side is outside tbe city limits and, therefore, beyond tbe jurisdiction of tbe municipality. And also is it true that proceedings by which private property is burdened with tbe cost of street improvements being in invitum must strictly conform to law to be valid,'but tbe only reasonable construction to be placed on tbe provision of tbe charter now being discussed is that all the land abutting on the part of tbe street improved must bear tbe cost of tbe improvement, and where all such property is on one side of tbe street, tbe fact of tbe lack of jurisdiction in tbe city over tbe property on tbe other side will not deprive tbe city of tbe power to compel tbe improvement of tbe street at tbe expense of tbe abutting owners within its jurisdiction. Directly in point is the decision of the Court of Appeals of Kentucky in Town v. Busse, 80 S. W. 210. There the dividing line between Covington and Central Covington — separate municipalities — was tbe center line of a street. The trustees of the latter city caused its half of the street to be improved and issued tax-bills for the whole cost against the abutting property within its jurisdiction. The court said: “On this account the board of trustees of Central Covington bad no authority to require the improvement of the north half of Willow street, or to levy a special tax upon the abutting property holders on that side for the purpose; but, as only the south side of tbe street was required to be improved by the ordinance, and only tbe cost of improving this half was actually assessed against the abutting property, we are unable to perceive any legal ground for releasing tbe abutting property holders from the payment of tbe cost thereof. When tbe other part of the street is improved, it will have to be paid for by tbe abutting property holders on tbe north side.” [664] Since the defendant, in paying tbe first assessment, in fact, has paid her full share of the cost of grading the entire thoroughfare, it is- but reasonable that the cost of grading the half of the street brought into the city by the extension of its limits should be discharged by the property-owners on the south side of the street. They are benefited as much by the grading for which plaintiff helped to pay as plaintiff is by the grading for the payment of which she now is asked to contribute. We are of opinion that- the whole of the present assessment should have been levied on the property on the south side of the street and that the taxbill in suit is invalid. Accordingly the judgment is reversed. All oncur.