City of Kansas ex rel. Enright v. Ratekin , 1888 Mo. App. LEXIS 287 ( 1888 )

Ellison, J.

This was a suit upon a special tax bill issued by the City of Kansas for constructing a district sewer known as the Bluff street sewer, in sewer district number twenty-nine, under ordinance number 22,662. The work was done and the tax bill issued in proper form.

The defendant answered, setting up among others the following defence: — Third.—That “said district sewer, so built and constructed, according to said ordinance number 22,662, does not ‘and never did connect with any public sewer or district sewer, Or with any natural course of drainage”, and that, therefore, the tax bill and ordinance were void.

It appears that the city had built a culvert across Bluff street, at the foot of Lincoln street, through which surface water passed on to adjoining flat lands of the Union Depot Company and the Hannibal & St. Joseph Railroad Company; that afterwards these lands were raised by filling in, laying tracks, etc., and to protect them the companies built a trench across their grounds, connecting at one end with the culvert at Bluff street, and at the other with a district- sewer built by the city about the same time the trench was constructed by the companies. By this means the surface water passing through the culvert ran across the private property of the companies through their private trench. Section two of the city ordinance establishing this sewer provides for the connection of one end of it as follows: “Sec. 2. That a district sewer is hereby established and shall be constructed within said sewer district number twenty-nine, as hereby established, which shall consist of a district main sewer of eighteen inches inside diameter, beginning at. the culvert heretofore constructed across- and under Bluff street at the foot of Lincoln street, connecting with the open trench, culvert, or sewer, crossing the grounds of the Hannibal and St. Joseph Railroad Company and the Union Depot Company of Kansas City to a connection with the lateral sewer of district sewer number one hundred and twenty-three.”

The portion of the charter under which this ordinance was passed is as follows: “Sec. 2. District sewers shall be established within the limits of the districts to be described by ordinance, connecting with a public sewer or other district sewer, or with the natural course of drainage as each case may be.”

The court at the request of the parties made findings of facts in the cause, of which one is as follows: “19. That the said sewer does not and never did connect with any public sewer, or district sewer or any natural course of drainage, as contemplated by the amended charter of the City of Kansas.” This finding was justified by the evidence, and under the authority of the City of Kansas v. Swope, 79 Mo. 446, we [must hold the tax bill, upon which this suit was founded, to be void. The case was well stated by the trial judge in his written opinion in the case, in which he says : “It will thus be seen that the sewer in question depends for its outlet upon the open private sewet or trench owned and controlled by the Hannibal & St. Joseph Railroad Company and the Union Depot Company, and located upon the private grounds of these companies. And does not, as required by the city charter, connect with any public sewer, or district sewer, or with any natural course of drainage. The requirements of the charter cannot be disregarded in this way. The city has no preexistent right or implied power in matters of this kind, and when it undertakes to act, it must do so within the limits prescribed by the legislature and if it failed so to do then its acts are void.” Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; City of Kansas v. Swope, supra.

It is sought to avoid the effect of the finding made by the trial court, by the contention that the trench across the private ground of the Union Depot and Hannibal & St. Joseph Railroad Companies has become a sewer by dedication. But there is no evidence in the record to suppoz’t such contention. I discover nothing from which a reasonable inference of a dedication could be drawn. “Where without judicial proceedings or compensation, or solemn form of conveyance, it is sought to establish, in pais, a divestiture of the citizen’s landed property in favor of the public, the proof ought to be so cogent, persuasive, and full, as to leave no reasonable doubt of the existence of the owner’s intent and consent.” McShane v. City, 79 Mo. 41.

It is also insisted that these companies are forever estopped from asserting that their trench is not a public sewer and from preventing its use for sewerage purposes by the city. There is likewise no evidence upon which to base this assertion. The companies connected their trench with the culvert before this sewer was contemplated. Such connection was solely for the purpose of protecting their grounds from surface water and was not intended for the benefit of the public. Besides, allowing surface water to run through their trench is quite a different matter from permitting the foul sewage of a city to pass through it. There is no evidence to show that the companies knew of the intention of the city in regard to this connection until long after the sewer was begun and then the president of one of them protested against it.

The trial court properly found from the evidence that these companies ‘ ‘ never agreed or consented to the use of such private sewer for sewerage purposes.”

The judgment, with the concurrence of Judge Hall, is affirmed

Philips, P. J., dissents.