Donovan v. Coles

Rombauek, P. J., delivered the opinion of the court. This is an action upon a special tax-bill issued to the plaintiffs for paving part of Third street between Morgan and Biddle in the city of St. Louis. The only defense interposed is that the space improved in front of the defendant’s lot is not a public street, but a city market-place owned, used and rented by the city of St. Louis as such. There was judgment for the plaintiffs in the trial court, and the defendants appealing assign for error the refusal of their instruction to the effect that if the place improved was, at the date of the work sued for, a market.place under the ordinance offered in evidence, then plaintiffs could not recover, and also that the judgment is not supported by the evidence. The ordinance in question is as follows: “ Sec. 3. All that portion of Broadway from a point fifty feet north of the north line of the bridge, and south of. Cass avenue, and all the sidewalks thereof, and the market-house erected on the lot of ground fronting on Biddle street forty-nine feet and three inches in depth, and [164] more particularly described as being bounded on the north by O’Fallon street, east by Broadway, south by Biddle street and west by Fifth street, shall constitute and be known as the city market. Sec. 13. All that portion of Broadway on either side thereof, next to the sidewalk, which is between Christy avenue and Howard street, is hereby set apart for farmers, and other wagons bringing produce to market for sale, provided that a space of ten feet shall be kept vacant opposite each store or building alternately, in such manner that there shall be a continuous space of twenty feet vacant opposite each of two of such stores or buildings, for the use of vehicles conveying goods, wares or merchandise, to or from the same, and it shall be the duty of the market-master of the city market, to strictly enforce the above provisions, and when necessary to summon a sufficient number of police to accomplish that object.” In addition to the ordinance, the defendants gave evidence tending to show that the city rented wagon-stands on the space in front of defendants’ lot, and derived a revenue therefrom ; that the wagons on these stands occupied the space for a small part of the day, and that in other respects the space was used as any other public street in the city of St. Louis. The special tax-bill offered in evidence by plaintiffs was prima-facie evidence in their favor that the work and material charged in such bill have been furnished, and of the liability of the person therein named as owner of such property. Herman v. Payne, 27 Mo. App. 483 ; Ess v. Bouton, 64 Mo. 106. This disposes of the defendants’ objection that the judgment is not supported by the evidence. The affirmative defense attempted was wholly insufficient. The fact that the street was designated by the ordinance as a market, and part of it used by the city as a stand for market-wagons, did not amount to a vacation of the street. This was expressly decided in [165] Bixler v. Hagan, 42 Mo. 867, 374, under an ordinance almost identical in terms. That decision precludes all argument on that subject. The appeal is without merit. Judgment affirmed. All the judges concur.