Commerce Trust Co. v. H. G. Blakely

BLAIR, J. Kansas City caused a part of Wyan-dotte Street to be graded, and this is an action by the assignee of special tax-billsi issued in part payment for the work. A demurrer to the -answer .was sustained and judgment entered on appellants ’ refusal to, plead -further. Wyandotte Street runs almost north, and south between Thirty-first and Thirty-third Streets (running east and west) but not in a direct line. The two blocks graded lie between the two' last-named streets. The territory for several hundred feet on each side of Wyan-dotte Street was laid out in 1873, when still nearly a mile south of the city limits. -A plat was then filed, designated “Amended Plat of McGee’s Summit.” In 1897 this territory and much other was taken into the city. Subsequently, most of that part of McGee’s Summit west of Wyandotte Street was replatted as “Amended Plat of Greystone,” and a small portion! of that part east of Wyandotte and just north of Thirty-third Street was replatted as Ross’s Subdivision. The portion of M-cGee’s Summit designated as blocks and lying east of Wyandotte Street were much larger than ordinary city blocks-. Block 2 contained over ten acres, and Block 1 over eight acres. These blocks were divided into portions designated as lots, of which the area far exceeded the ordinary city lot, ranging from three-fourths of an acre to more than one and three-fourths acres. Ordinary city blocks are admitted to be [56] about 330 feet from east to west, and ordinary lots. about 25 or 50 by 130 or 140,feet. The lots and blocks as laid out in ‘ ‘ G-reystone ” conform in size, generally, to ordinary city lots and blocks. In “Greystone” Central Street was opened west of Wyandotte and almost parallel to it. It runs north and south. The block or parcel between Central and Wyandotte is about one hundred and sixty-five feet wide at Thirtydhird Street, on the southland runs almost to a point where Central and Wyandotte meet. This is about-150 feet south of Thirty-first Street. On the east side of Wyan-dotte and just south of Thirty-first Street lies a tract designated as “Block 1” on the plat of McGee’s Summit. Its north' boundary extends from Wyandotte ort the west 901 feet to Main Street on the east. Its south boundary, between the same streets, is 721 feet in length. Its length from north to south is about 440- feet. On the west side of this tract, from north to south, along Wyandotte Street, lie parcels designated as lots 8, 7 and 6. On the east side, on Main Street, from north to south, lie parcels designated as lots 1, 2 and 3. Between the rear line of 8, 7 and 6 and the rear line of 1, 2, 3 lie parcels designated lots 4 and 5. Lot 4 adjoins the rear, of lots 8, 7 and 6. These two-parcels (4 and 5) occupy the center of Block 1, extend through it from north to south, are 125 feet in width and front on Thirty-first Street on the north and Spring Street on the south. Along the south line of Thirty-first Street the distance of the northwest corner of lot 4 from Wyandotte Street is 368 feet. Its southwest corner is 240 feet from Wyandotte Street. It is 263 feet from Wyandotte Street to the northeast corner of lot 6 and the southeast corner of lot 7. From the same street, the northeast corner of lot 7 and the southeast corner of lot 8 are distant about 315 feet. Through blocks 1 and 2, from north to south, there is no street between Wj^andotte on the west and Main on the east. Approximately half way between Wyandotte and Main, Baltimore is opened from the north to Thirty-first Street and from the south to [57] Thirty-third Street — the southern boundary of block 2, Baltimore is about to be opened through the blocks mentioned. Ordinances have been introduced for that purpose. Property was assessed .on the west side of Wyan-dotte half way to Central. The depth of the district on the west side of Wyandotte varies from 93 feet on the south to 54.5 feet on the north. On the east side of Wyandotte th$*prop.erty was assessed as far back as 425 or more- <fePt on the north side of Block 1 and 365 feet on they1 south side of Block 1. Three and one-third times as much property, by area, was assessed east of Wyandotte Street as was assessed west of it. Nearly two-thirds of the total amount 'assessed was assessed against property east of Wyandotte. The city charter provides that the cost of grading “shall be charged as a special tax on all lands on both sides of the street . . . graded, within the following limits, viz.: In ease the land fronting on the street . . . graded be laid off in lots or blocks, property so laid off from the line of the street . . . graded back to the center of the block or blocks, shall be so charged, whether fronting on the street ... or not; nevertheless, the Common Council shall have power by ordinance to prescribe that such lands shall be not charged beyond the alleys in such blocks, if deemed .just and equitable, and in case any land fronting on such street . . . graded be not laid off into lots or blocks, then the land not so laid off, and the land in the rear thereof on the line of the street . . . graded, back one hundred and fifty feet, shall be so charged, whether fronting on the street or not; and land liable for such grading shall be charged according to the value thereof, exclusive of improvements thereon, as herein provided.” The. cost of grading involved was' charged on the theory that the land was laid off in lots and blocks. Appellant contends this theory was incorrect and that the result of the assessment is the violation of his constitutional rights; that his property is taken without [58] due process of law, and that the assessment is so arbitrary and so grossly unequal and unfair that it is invalid within the rule announced in Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55. It is contended that part of McGee’s Summit lying east of Wyandotte Street is not laid off in lots and blocks within the meaning’1 of the charter. A usual'definition of “block” is that it is a portion of a city surrounded by principal streets. Ordinarily this is correct. It is apparent that tfeei application of this definition might be unjustifiable in a particular case. In Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, the court held invalid an ' assessment in proportion to area which distributed “a local tax in grossly unequal proportions, not because of special consideration applicable to the parcels taxed, but in blind obedience to a rule that requires the result.” The city charter of St. Louis was involved. It is clear the parcels denominated blocks 1 and 2 are of a character frequently found in rapidly growing cities like Kansas City. It is also clear the plat was made with no idea of conforming lots and blocks to the size and shape of those usually found in the platted portion of Kansas City. These blocks and lots obviously are laid out for suburban rather than urban uses. Their sizes and shapes and distance from the city in 1873 demonstrate this. To hold these tracts are “lots or blocks” within the sense of the charter is to ignore all these considerations. [Sivyer & Sons Co. v. Spokane, 77 Wash. 282, In re Smith’s Estate, 51 Minn. 316.] It is beyond question these tracts are not only susceptible of further division, but that such subdivision is necessary if this territory is to become a harmonious part of the usual scheme of improvement. Further, the extension of Baltimore Street is not merely to be expected. Steps looking to the extension of it through blocks 1 and 2 had been taken when these proceedings were had. Besides the force of all these facts, we are confronted with tire insistence that the application, to this property, of the [59] block rale of apportionment violates the principle of the Oast case. It is true, exact equality in apportioning the burdens of improvements is beyond human wisdom, and no lieed will be given complaints against a rule which approximates justice as nearly as reasonably may be. Exceptional oases of hardship in the natural and ordinary application of a principle of apportionment generally fair and just “must be borne as one of the imperfections of human things” (L. & N. R. R. v. Barber Asphalt Co., 197 U. S. l. c. 434); nor can the fact that lots and blocks differ somewhat in size always render the rule invalid, any' more than it would be rendered invalid by an apportionment not exactly commensurate with the proportion of benefit to the tract affected. A liberal view must be taken of inequalities resulting from the application of any rule of apportionment. Exact equality is humanly impossible. Nevertheless, when all this is given its proper weight a rule of apportionment cannot be upheld in a particular case like this if it results in gross inequality and arbitrarily distributes the burden without regard to “special considerations applicable to the parcels taxed.” [Gast Realty Co. v. Schneider Granite Co., supra.] In this case, there is no obstacle, natural or artificial, precluding the extension of Baltimore Street, nor is there an occupancy of such character as to warrant an inference that this property will not be developed like other city property in the vicinity. Th'e application of the term “block” to the property in question and the apportionment according to that definition results in a benefit district on the east side of Wyandotte nearly nine times as wide at one point as one part of the district on the west side of Wyandotte. The district on the east averages more than six times the width' of that on the west. We are loath to give the term “block” a definition which so clearly brings it, in its application to this case, within the condemnation of the constitutional principle announced in the Gast case. The demurrer to the answer should have been overruled. The judgment is reversed and the cause remanded. All concur, except Bond, P. J., absent.