author: WALKER, J.

text:
    CHARLES E. ZINN et al. v. BALTHAZAR SIDLER et al., Appellants.
    Division Two,
    July 18, 1916.
    1. BUILDING LINE: Restrictions: Must Be by Covenant. To sustain the suit of other lot owners in the block to restrain the owner of a lot from buiding on a strip óf ground between the street and what is designated on a plat as “building line,” a covenant as to the restricted use is necessary. The creation of such a covenant may be by express words, or by reasonable implication from words employed clearly indicative of such a purpose.
    2. -: -: Designation on Plat. The mere designation of certain .lines on the recorded plat of an addition- as “building line,” is not a restriction upon the use of the strip outside the line for building purposes.
    3. -: -: Reference to Plat in Deed. And a reference to the plat in that part of the dedicator’s deed describing the land, is to be held to be a matter of description, and not a restriction upon use.
    4. -: : Recognized by Deeds of Others. A reference to the building line in the conveyance of a particular lot, made by a later grantee of the dedicator, is simply a recognition of the restricted use of that lot, but is not a restriction upon the other lots of the addition embraced in the plat.
    5. -: : Plat as Part of Subsequent Deeds. The rule that a plat of land, shown to be correct and recorded, becomes a part of subsequent deeds, has reference, unless other limitations are mentioned in it, to descriptions; and a mere line drawn upon it, without more, will not suffice to create a covenant as to use.
    6. -: : Effect of Covenant. A restrictive covenant upon use of land affects the fee, and is not favored in the law, and must be expressed in words which give formal expression to the covenantor’s purpose; if not by his plat, then either by words definitely defining the covenant, or by words making apt reference to a designated line defining the extent ' of the use.
    7. -: -: Kinds and Character of Covenant. To create a restriction upon the use of a lot for building purposes, a covenant must be created, and it is immaterial whether it be termed an equitable easement, or a servitude or a restrictive covenant; if express, it must be in words; if implied, the implication from the words used must be such as will clearly authorize the inference or imputation in law of the creation of the covenant.
    Appeal from Jackson Circuit Court. — Hon. James H. Slover, Judge.
    Reversed and remanded (with directions).

      Cook & Gossett, Beardsley & Beardsley and Stubenrauch & Hartz for appellants.
    (1) The mere designation upon the plat of a subdivision of land, or addition, whether within or without a city, of a plain line or lines, and writing on the plat near or along such line or lines the words “Building Line” is too indefinite and indeterminate, and is not a sufficient expression of a positive and perpetual restriction upon the use of the land to be binding as a restriction of the ordinary and usual exercise of ownership and enjoyment of land. Claims of restriction upon the right to ordinary enjoyment of property should be unfavorably and strictly construed. Kitchen v. Hawley, 150 Mo. App. 497; Scharer v. Pantler, 127 Mo. App. 432; Oil Co. v. La Tourette, 19 Okla. 92; McMurtry v. Phillips, 103 Ky. 308; ■ Minister v. Madison Amus. Co., 214 N. Y. 267; Van Duyn v. H. S. Chase & Co., 149 Iowa, 222; Jones v. Williams, 56 Wash. 588; Johnson v. Shelter Island Assn.,'122 N. Y. 330. (2) If the platter had so intended to positively restrict, he should and naturally would have said so expressly. King v. Trust Co., 226 Mo. 357. Or the platter may have made his plat as he did intending to put restrictions in his deeds, to make the building line binding as a restriction for some reasonable time and in some reasonable manner, and then abandoned sncb idea and immediately sold the lots as free and clear of all incumbrances, claims, -servitudes, etc. Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 Pae. 467; Sec. 2793, R. S. 1909. (3) If a building restriction in the nature of a plan of. improvement is disregarded, or suffered to be disregarded, to a substantial extent by the grantor, originator of the same, or those thereafter claiming under him, it is an abandonment of, or such inconsistency concerning the same, that owners of other lands are not bound by such restriction. Improvement Co. v. Towers, 158 Mo. 282; Towers v. Compton Hill Co., 192 Mo. 379; Thompson v. Langan, 172 Mo. App. 64; Hawes v. Favor, 161 111. 440; Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 Pac. 467.

      Smart & Strother, Fyke & Snider and E. E. Steele for respondents.
    (1) The plat of McKinney Heights was recorded in 1886, and vested in the City of Kansas (now Kansas City), the fee of the streets and alleys thereon shown and dedicated to public use. R. S. 1879, secs. 6569-6575; Cameron v. Stephenson, 69 Mo. 372. By the extension of the city limits in 1897, McKinney Jleights became a part of Kansas City. Kansas City Charter 1898, sec. 2, art. 1; 1 R. S. 1889, see. 1880, as amended by Laws 1895, 54; R. S. 1909, see. 9743. (2) The deeds, under which appellants claim title to their land, describe it by lot and block number on the plat of McKinney Heights. The plat itself, therefore, with all its notes, lines, descriptions and land marks is as much a part of such deeds as if it had been set out in the face of the deeds themselves. Whitehead v. Ragan, 106 Mo. 234; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 21; Campbell v. Wood, 116 Mo. 201; Whitehead v. Atchison, 136 Mo. 495; Caruthersville v. Huffman, .262 Mo. 375; Lindsay v. Smith, 178 Mo. App. 189; Simpson v. Mikkelsen, 196 111. 575; Smith v. Young, 160 111. 163. (3) The “building line,” marked as such on the plat of McKinney Heights, with its distance from the adjacent streets plainly indicated in feet in the same manner as all other distances shown on the plat, is perfectly plain and unambiguous in meaning and is a restriction upon the manner of use and improvement of the lots shown on the plat. Simpson v. Mikkelsen, 196 111. 575; King v. Trust Co., 226 Mo. 351; Yeomans v. Herrick, 178 Mo. App. 274; Tallmadge v. Bank, 26 N. Y. 105. (4) The restriction, although unlimited as to time, does not create a perpetuity, but on the contrary is a valid restriction which equity will enforce at the suit of any party entitled to the benefit of it. ’ Stevens v. Realty Co., 173 Mo. 511; Noel v. Hill, 158 Mo. App. 444; Tobey v. Moore, 130 Mass. 448. (5) The appellants having erected their building in violation of the building line, pending the suit, the mandatory injunction requiring the removal of such part of it as violated the restriction was proper. Meriwether v. Joy, 85 Mo. App. 634; Fete v. Foerstel, 159 Mo. App. 75.
   WALKER, J.

— This is a suit in equity brought in the circuit court of Jackson County at Kansas City to enjoin defendants from erecting a building on a lot in McKinney Heights in said city. »

A restraining order was granted and later dissolved. After its dissolution and before the trial, defendants erected a building on said lot. In September, 1912, a trial was had resulting in a judgment for plaintiffs, requiring defendants, within ninety days thereafter, to remove so much of said building as projected over the building line on the lot, and restraining defendants from erecting or maintaining a building on the lot nearer the adjacent streets than twenty feet in one instance and fifteen feet in the other — the lot being on a corner. Jurisdiction to make further orders was retained to enforce compliance with the judgment then rendered. Prom this judgment the defendants have appealed.

In June, 1886, Marshall P. Wright owned a tract of land of tbirtv-one acres adjacent to the corporate limits of Kansas City. . He laid it out in lots and blocks and streets and alleys, dedicating the latter to public use, acknowledged the plat and recorded the same, as required by the statute, designating the addition as “McKinney Heights.” In 1897 it was made a part of Kansas City.

Across tbe lots and blocks on this plat, twenty feet from the street lines and parallel thereto— except along St. John Avenue, where the distance is fifteen feet — checked or broken lines were drawn designated as “building lines.” Defendants’ lot, described as “lot 14 of block 4, McKinney Heights,” against which this particular proceeding is directed, is situated on the northwest corner of Jackson and St. John Avenues, the former running north and south and the latter east and west. The lot has a frontage of fifty feet on St. John Avenue.

Plaintiffs’ lots are in the same block as that of defendants, also fronting on St. John Avenue.'Plaintiffs contend that the lines on this plat marked “building lines” are restrictions upon all persons erecting buildings upon any of these lots, and that the action of the defendants in violating same is to plaintiffs’ damage and injury in that it tends to' depreciate the value of their property and interferes with the uniformity of the location of buildings on said tract or addition, which was intended, and is principally used, 'for residential purposes.

Defendants, in opposition to this plea, contend that at the time this plat was made and recorded the land platted was outside of the corporate limits of Kansas City and the building lines marked thereon were in no wise mentioned except by marking them on the plat; that neither the acknowledgment to the plat nor any deed conveying the lots therein designated has any reference to same, and that these lines constitute merely a suggestion to owners of property in said addition.and have no binding force or effect as a restriction; that they acquired possession of the lot against which this proceeding is directed without' any knowledge of the pretended claims or demands of plaintiffs that there was a building line restriction on the property, and that they purchased the same believing it to be unrestricted and unincumbered in any manner; that the enforcement of the restriction would constitute a taking of their property without due process of law. The reply admitted that McKinney Heights when platted was not in the corporate limits of. any city or town and that the defendants’ title was through mesne conveyances under Wright, who platted the property, but denied all the other allegations in the answer.

In July, 1886, soon after recording the plat, Marshall P. Wright and wife conveyed the entire addition to William McKinney, describing it as follows: “All lots in McKinney Heights, being originally the L. P. Browne tract, consisting of thirty-one acres in the east end of the south half of the northeast quarter of section 34, township 50, range 33, Jackson County; Missouri. The plat of said McKinney Heights being recorded in book B, page-, June 17, 1886, to which further reference is, hereby made. ’ ’

January 20, 1887, William McKinney and wife conveyed the addition to Thomas A. Harris, describing it as follows: “All of McKinney Heights [except certain blocks therein named] as the same is marked and designated on plat 5 in the office of the recorder of deeds for the county of Jackson, State of Missouri.”

January 28, 1887, Thomas A. Harris and wife conveyed the addition to Calvert R. Hunt, describing it as follows: “All of McKinney Heights, an addition to the City of Kansas, as the same is marked and designated on the plat filed in the office of the recorder of deeds for the county of Jackson, State of. Missouri [except certain lots therein named].” At different times subsequent to the conveyance to Hunt deeds were made to different persons to lots in this addition.

McKinney Heights was a residence district before the erection of the building by defendants, and at the time of the trial there were 95 buildings on the addition, including that of defendants, 82 of which conformed to the building lines, the remaining 13 having been built in disregard of same. There was testimony in detail as to the conditions under which the different buildings were erected so far as concerned the builders’ knowledge and observance of the building lines, tending to show, in the majority of cases, that when notified of the restriction parties complied with same. It was also shown that plaintiffs in no case expressly acquiesced in any violations of the restriction, but when notified protested against same.

A covenant as to the restricted use of the property in question is necessary to sustain contention; the creation of of such a covenant may be , by express words or by reasonable implication from words employed clearly indicative of such a purpose.

The owner, Wright, who subdivided the property and recorded a plat of same, may have had such a purpose in contemplation in designating certain lines on the plat as building lines; but this purpose was never consummated. Aside from the absence from the plat of any other reference to this proposed restriction, there is nothing in the conveyance made by him of the entire tract to indicate' such a purpose. It is true the description of the property contains a reference to same as subdivided, adding, as regards the plat, “to which further reference is hereby made. ’ ’ The two subsequent transfers of the entire addition are no more definite and the later transfers of particular lots, except in one instance, bear no reference to any restricted use. The excepted instance referred to is not determinative of the matter at issue; it is simply a recognition in one of the transfers of a single lot of the existence of a restriction. At best the references in these deeds to the plat are matters of description, and if otherwise intended, at least some definite indication of the grantor’s purpose should appear, especially in the conveyance made by Wright in the first transfer of the entire property after its subdivision.

As a general proposition a plat of land shown I to be correct and properly recorded becomes a part/ of subsequent deeds to same. [Lindsay v. Smith, 178 Mo. App. l. c. 193.] This ruling, however, has reference, unless there are other limitations, to the location or description of the property (Ferguson v. Dent, 8 Mo. 667; Dryden v. Holmes, 9 Mo. 134), and so far as our investigation has led us, a mere, designated line drawn upon a map or plat of proper^ ty, without more, will not suffice to' create a covel nant.

It has often been held that in construing plats “effect must be given to the plain meaning and intent they exhibit by their outlines as well as by their words,” as in Caruthersville v. Huffman, 262 Mo. l. c. 375; Whitehead v. Atchison, 136 Mo. l. c. 495; and St. Louis v. Railroad, 114 Mo. l. c. 22. These cases and others of like character in the application of the rule have reference to the subdivision of property into lots and blocks and streets and alleys in which the subdivision becomes fixed upon the filing of the plat in the recorder’s office — the block and lot lines being designated as a measure of convenience and necessity and the street and alley lines as defining portions of the tract dedicated by the owner to the public. [Sec. 10290 et seq., E. S. 1909.] These are essentials of every plat; they exist as a necessary part of it and no transfer can be made of the property therein without express reference to such subdivisions.

A covenant, however, is not a necessary part of a plat but is dependent for its creation on the will of the owner of the property subdivided. That will cannot, by reason of the very nature of a covenant, be declared by a designated line and nothing more. It must be expressed in words, either definitely defining the covenant or making apt reference to the designated line, thus giving formal expression to the covenantor’s purpose. [13 Cyc. 713, and notes.]

This conclusion is sustained by an almost unbroken line of cases, if not by express rulings by the facts themselves • showing on the face of the instruments affecting the property, either in express words or by clear implication, a purpose to create a restriction. [King v. Union Trust Co., 226 Mo. l. c. 367; Scharer v. Pantler, 127 Mo., App. 433; Hisey v. Church, 130 Mo. App. 566; Kitchen v. Hawley, 150 Mo. App. 497; Miller v. Klein, 177 Mo. App. 557; Bolin v. Tyrol Inv. Co., 178 Mo. App. 1.]

An exception to this rule is found in Simpson v. Mikkelsen, 196 Ill. 575, which we decline to follow in the presence, especially in our own jurisdiction, of a strong current of authority to the contrary. The reason for the ruling of the majority is evident. A restrictive covenant lessens the fee and is not favored in law. It should, therefore, be made manifest in no uncertain manner and not he left entirely to implication, as in this case. It has been expressly ruled elsewhere, and is in accord with our reasoning, that a covenant not to use property except in a certain way will not he inferred from the absence of words of restriction. [Madore’s Appeal, 129 Pa. St. 15.]

In the presence of the concrete facts, in the instant case, these general deductions are authorized: that to create the limitation on the fee herein contended for, a covenant must have been created; and it is not material whether it be termed an equitable easement, as in King v. Union Trust Co., supra, or a servitude or a restricted covenant. If express, it must he in writing, i. e., declared in so many words (Fuhr v. Dean, 26 Mo. l. c. 119; Petty v. Church of Christ, 70 Ind. l. c. 297); if implied (and here also note the necessity of the use of words by the covenantor), the implication from the words used must he such as will clearly authorize the inference or imputation in law of the creation of the covenant. The only exception to this rule is in the case of implied covenants, classified as covenants in law, or those which the law implies or intends from the nature of the transaction although not given form in words in the instrument containing them. Thus in conveyances in fee containing the words “grant, bargain and sell,” a covenant of warranty is implied. [Stoepler v. Silberberg, 220 Mo. 258; Waldermeyer v. Loebig, 222 Mo. 540.] Express recognition of this rule is given by onr statute (Sec. 2793, B. S. 1909); but it existed at common law (Coke Lit. 384b; Rawle Cov. 5), the statute, and others of like nature, being merely declaratory of same (2 Reeves’ Hist. Eng. Law. 54); and in a lease the term “demise” is held to import a covenant on the part of the lessor of right and title to make the lease and for quiet enjoyment. [Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350.]

But no such rule exists in regard to covenants carrying a restriction. These, for the reasons stated, must be defined. This has not been done; and while the tendency of the courts is to disregard restrictive covenants, we would be inclined to sustain the plaintiffs’ contention if the facts showed that by so doing the intent of the original grantor would thereby be effected. But we do not so interpret the evidence. We therefore decline, on the proof alone of a designated line appearing on the plat, to read into the conveyances of the property subdivided an express restriction, the effect of which would be to limit the use of and lessen the tenure by which the owners hold these lots.

From the foregoing it follows that the judgment below should be reversed and the case remanded with directions to the trial court to dismiss plaintiffs’ action and to enter judgment for the defendants, and it is so ordered.

All concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    W. C. MULLINS v. MOUNT SAINT MARY’S CEMETERY ASSOCIATION et al; MOUNT SAINT MARY’S CEMETERY ASSOCIATION, Appellant.
    Division Two,
    July 18, 1916.
    1. SEWER. TAX: Cemetery: Presumption in Favor of Ordinance. There is a presumption in favor of the reasonableness of an ordinance which includes a cemetery wHhin a district sewer district, and taxes the cemetery property with the cost of constructing lateral sewers laid in the alleys or streets abutting against the cemetery. The burden of establishing the contrary rests upon the objector and this prima-facie case must be overcome in the most satisfactory manner.
    2. -: -: -: When No Contrary Showing. Where the evidence shows that the sewers, for the payment of the cost of the construction of which the tax bills sued on were issued, served to carry away,, the surface water from the cemetery, and there is no evidence that sewers are not beneficial in the sanitation of the cemetery, it will be presumed that the city legislature was fully informed on the subject and that its ordinance including the cemetery in the sewer district was reasonable.
    3. -: -: Area Rule: Reasonableness. A city council must levy a district sewer tax upon cemetery property in proportion to area, or relieve it from benefit assessment al together; and although the tax is very large, owing to the large size of the cemetery, its ordinance levying a tax according to area must stand in the absence of evidence showing that it was unreasonable.
    4. -: Cemeteries as Separate Districts: Evidence. It is not reversible error to exclude evidence to show that the city had in two other cases made cemeteries separate sowei districts, where there is no showing that the facts connected therewith were similar to those in the ca,.e on trial.
    5. -: Notice of Proceedings: Due Process. No notice is necessary of the proceedings resulting in the sewer tax hills which are legislative assessments, unless such notice is required by the charter or some ordinance or some statutory provision.
    6. -: Against Cemetery as a Whole. The sewer tax bills should he issued against the cemetery as an entirety if the ownership of all the land in the cemetery is in the cemetery association.

      Appeal from Jackson Circuit Court . — Hon. Thomas J. Seehorn, Judge.
    Affirmed.

      McCune, Harding, Brown & Murphy, William Moore and Clarence S. Palmer for appellant.
    (1) As to the property of this defendant, the imposition of the special assessments in question could result in no possible benefit, actual or potential. The acts were' manifestly oppressive and an unreasonable exercise of municipal authority and therefore void. The trial court erred in not so finding and deciding. Neenan v. Smith, 50 Mo. 525; t Grading Co. v. Holden, 107 Mo. 305; McGhee v. Walsh, 249 Mo. 279; Corrigan v. Gage, 68 Mo. 541; Kelly v. Meeks, 87 Mo. 401; Copeland v. St. Joseph, 126 Mo. 417; St. Louis v. Theatre Co., 202 Mo. 690; Halpin v. Campbell, 71 Mo. 493; Freund on Police Powers, sec. 158. (2) As the charter under which this work was done contained no provision for notice to property owners or no opportunity for a hearing, the courts alone can give redress against the unreasonable and arbitrary acts of the city authorities. Sec. 10, art. 14, Charter of 1889, p. 147; Meier v. St. Louis, 180 Mo. 409; McGhee v. Walsh, 249 Mo. 284. (3) If this court decides that the ordinances were not so unreasonable as to be void, still it was error in the trial court to hold that one tax bill could be issued, including both the land still owned by the defendant and the land already sold. The effect of this ruling, under the facts in the record, was to make half the amount of the tax bills the personal obligations of the defendant. The trial court erred in not giving defendant’s instruction number 2. Sec. 10, art. 14, Charter of 1889, p. 147; Fowler v. St. Joseph, 37 Mo. 228; St. Louis v. Provenchere, 92 Mo. 66; Cooley on Taxation, sec. 410; Christian to nse v. Taussig, 8 Mo. App. 602; Kemper v. King, 11 Mo. App. 116; City to use v. Allen, 53 Mo. 54; Neenan v. Smith, 60 Mo. 525; State v. Newark Co., 50 N. J. L. 66; Cemetery Co. v. Brockmaster, 49 N. J. L. 449; Neil v. Ridge, 220 Mo. 233. (4) The enforcement of the special assessments with no resulting benefits, actual or potential, amounts to the taking of property of defendant without due process of law, in violation of section 20, article 2, of the Constitution of Missouri, and of section 1 pf the Fourteenth Amendment of the Constitution of the United States. Hayes v. Missouri, 120 U. S. 68; Railroad v. Minnesota, 134 U.‘ S. 458. (5) The judgment of the trial court in enforcing the whole amount of the special tax bills as a single lien against the property now owned by defendant, including that part of the amount of said tax hills computed on the area of land already sold by defendant, amounts to a .denial to the defendant-of the equal protection of the laws, in violation- of section 1 of the Fourteenth Amendment to the Constitution of the United States. (6) The court erred in rejecting evidence offered to- show the amount of sewer hills issued against the land in question prior to the issue of the hills in suit, also in rejecting evidence offered to show that in other cases Kansas City had established sewer districts comprised only of a cemetery. This evidence was competent on the question of the reasonableness of the proceedings as they affected the land in question.

      Fyke & Snider for respondent.
    (1) The question of benefits is a question peculiarly within the province of the city council. Keith v. Bingham, 100 Mo. 306; State ex rel. v. Schweickardt, 109 Mo. 511; Hernán v. Allen, 156 Mo. 543; Johnson v. Duer, 115 Mo. 376; Hernán v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 451; Corrigan v. Kansas City, 211 Mo. 649. (2) It is claimed by the learned counsel for the defendant that the establishment of the sewer district by ordinance, and the ordinance providing for the construction of District Sewer in Sewer District 218 without notice to the defendant, violate the provisions of the Constitution of the State of Missouri and of the United States. By a long line of decisions of the Supreme Court of Missouri such proceedings have been held valid and not in violation of any constitutional provision of the State or of the United States. ■ Kansas City v. Huling, 87 Mo. 207; Mining Co. v. Joplin, 124 Mo. 138; Bank v. Carswell, 126 Mo. 444; Moberly v. Hogan, 131 Mo. 23; Hernán v. Schulte, 166 Mo. 414; Asphalt Co. v. French, 158 Mo. 552; Davidson v. New Orleans, 96 U. S. 97; State ex rel. v. Seehorn, 246 Mo. 584. Under the city charter the defendant is not denied due process of law. No notice of the ordinance creating the sewer tax was necessary, neither was any notice of the ordinance for the construction of the sewer necessary. The charter provides that, in any action on a special tax bill the defendant may plead and prove that the work was not done in a workmanlike manner, and may reduce the bill if such fact be established. The lien against his property cannot be enforced except by an action in court of which the property owner must have notice; therefore under all decisions he has due process of law. (3) The suggestion that two tax bills should have been issued, because defendant has different interests in different parts of the ground is without merit. Parsons v. Grand Rapids, 141 Mich. 467.
   ROY, C.

— Plaintiff recovered judgment on special tax bills for sewer construction. The defendant has appealed. This is the third appeal, in the case. [See: 239 Mo. 681 and 259 Mo. 142.]

The petition is in two counts, the first being based on a tax bill issued October 12, 1904, for $17,-598.28, and the second on a tax bill issued September 1, 1905, for $1,531.71. Both bills bear interest, in case of default, from date, at ten per cent.

Sewer District No. 218, in which the work was done, was established by ordinance on August 2, 1901. It is the largest in the city, containing about 407 acres. It is over a mile and a half long north-and-south, and nearly three-fourths of a mile wide in the middle. The land slopes from the east and west sides to the middle line, and there is a general incline to the north. The cemetery is composed of a square sixteenth of a section, except four acres belonging to the Homei of the Sisters of the Good Shepherd in the northwest corner, and excepting such part as may be in the streets on the east, south and west sides of it, the cemetery proper containing about thirty-four acres. The evidence on the point is not clear, but tends to show that the most of the surface water of the cemetery runs to the west, gathering eonsiderably towards the part just south of the Home of the Good Shepherd. When unrestrained it passes onto and over the adjoining land. To what extent such surface water flows northward onto adjoining land is not shown.

The tax bills in controversy were issued for the construction of lateral sewers, some of which with manholes and catch basins therein, extend along the south and west sides of the cemetery and along the-north fourth of the east side. There is no street along the north side; but there are three streets and four alleys extending from the north and terminating in culs-de-sac at the cemetery line. Sewers were placed in those alleys, with manholes in each close to such line. None of those sewers were laid in the cemetery grounds. No openings in the sewer pipes were made on the sides next the cemetery for house connections, but the evidence shows that such openings are often made by the plumbers when the connections are made.

In grading the street on the west a ten-foot fill was made near the northwest corner of the cemetery. The grading contractor placed a ten-inch pipe so as to. lead the water from the cemetery into the manhole at that point, thus preventing the formation of a pond. There aré two waterclosets in the defendant’s grounds, neither of which connects with the sewers. The defendant has an eight-inch pipe about 400 féet long laid in the cemetery for the purpose of drawing the water towards the west.

The cemetery’s, existence began in 1877. The corporation is a charitable one and has no capital stock. About half the land in the cemetery had been disposed of in lots to purchasers for burial purposes prior to 1904. There had been about 9,000 interments, the number being about 15,000 at the time of the last'trial. The lots sell at from fifty-five to seventy cents a square foot. The by-laws of defendant provide that one-third of the money received for lots sold shall constitute a- maintenance fund to be loaned at interest, the income to be used in caring for the cemetery. The evidence shows that the land in that vicinity, for other than cemetery purposes, is worth from $1,250 to $5,000 an acre. Witnesses both for plaintiff and defendant testified that the location • of the cemetery affected the value of the land in the vicinity, but they did not say whether it enhanced or depreciated it. The defendant offered to prove that two other cemeteries in Kansas City had each been made a separate sewer district, but the evidence was excluded. The trial court also excluded evidence offered by defendant to show that two other special tax bills for thu construetion of sewers in that district had been issued against defendant prior to those in suit, one for $9,104.30, and the other for $1,611.15. The plaintiff was put on the stand by the defendant and testified that when he made his bid for the work he knew that the land of the defendant was used for a cemetery. He also testified that he had built some sewers for Elmwood Cemetery.

On the two questions, as to whether and to what extent sewers are necessary to cemeteries generally and to this one in particular, and as to whether the inclusion of this cemetery in such district was a reasonable exercise of the power of the Common Council, there was no evidence offered except as shown in the above statement.

I. The first point in appellant’s brief is therein stated as follows:

“As to the property of this defendant, the imposition of the special assessments in question could result in no possible benefit, actual or potential^ The acts were manifestly oppressive and an unreasonable exercise of municipal. authority and therefore void. The trial court erred in not so finding and deciding.”

In its printed argument is this statement:

“The testimony shows from the topography of the district that there was no engineering reason why this tract of land might not have been established as a sewer district by itself and thus relieved of. all burden of the construction of lateral sewers which are essential to the comfort and health of the living, but which are entirely useless for the city of the dead.”

There is a presumption in favor of the reasonableness of such an ordinance, and the burden of establishing the contrary rests upon the objector. [Hislop v. Joplin, 250 Mo. 588; St. Louis v. Theatre Co., 202 Mo. 690.]

That prima-facie case must be overcome “in the most satisfactory manner.” [Morse v. City of West Port, 110 Mo. 502.]

The language of appellant’s counsel is an unequivocal claim that it has no need for sewers and is under no obligation to furnish them to others; in other words, that its cemetery, for the purpose of sewer construction at least, has ceased to be. a part of the city within whose limits it is situated.

We will first consider the question as to whether ' such a cemetery is benefited by the construction of sewers. “Drainage of a district for sanitary purposes is the ground upon which the compulsory construction of sewers, and the imposition' of special taxes to pay the cost thereof, is authorized.” [Johnson v. Duer, 115 Mo. l. c. 377.]

In Prior v. Construction Co., 170 Mo. 439, it was held that plaintiff’s property, located on high ground, was benefited by the construction of a sewer which prevented its sewage from being cast upon the streets and sidewalks and into the cellars in a lower part of the district. In other words, each tract of land in a city should bear its portion of the burden of preventing the passage of any noxious thing from it into or onto other lands. Whatever discharges that burden is a benefit to the property whence the noxious substance emanates. Concede that the dead are indifferent to the question, the living have a right to demand that noxious substances shall not be disseminated from a cemetery into and over other lands.

“Thou shalt not bury a dead man in the city” was one of the laws of the Twelve Tables.

In Kincaid’s Appeal, 66 Pa. St. 411, Shakswood, J., said: “No one can doubt the power of the Legislature to prohibit all future interments within the limits of towns or cities. In ancient times, in Greece ■and Rome, such was the universal rule.”

In Lowe v. Prospect Hill Cemetery Assn., 58 Neb. 94, the defendant was enjoined from using a tract of ground in Omaha as a cemetery. The evidence showed that the ground in that vicinity was very pervious. Expert witnesses testified that disease germs often existed and multiplied in dead bodies, and were disseminated thence through the ground into neighboring lands, contaminating them, and rendering the water in the wells noxious to the health of the inhabitants. Other cases of like import are Clark v. Lawrence, 6 Jones Eq. (N. C.) 83; Jung v. Neraz, 71 Tex. 396; Los Angeles v. Hollywood Cem. Assn., 124 Cal. 344; Kingsbury v. Flowers, 65 Ala. 479; Sohier v. Trinity Church, 109 Mass. 1; and Partridge v. First Independent Church, 39 Md. 631. See also Joyce’s Law of Nuisances, sec. 393.

In Town of Lake View v. Letz, 44 Ill. 81, the court had under consideration an ordinance which prohibited the opening of any cemetery in the town (township) without the permission of the trustees. It was there said:

“There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. Now, the town of Lake Yiew is a rural township, containing about eleven sections or square miles of territory. It is therefore impossible to hold that a cemetery, anywhere within the limits of the' town, must be necessarily a nuisance, and can be prohibited in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand, be so located and arranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape garden, and as free from all reasonable objection.”

In Lake View v. Rose Hill Cem. Co., 70 Ill. 191, is the following:

“Burial places are indispensable. Convenient to the city of the living, a depository of the dead must be established and maintained. It concerns the public health, and if such places were not prepared by private - enterprise, it would be the duty of the State to act in the premises.”

It will be noticed that the court does not there approve the location of cemeteries in populous cities. It speaks of them in places “convenient to the city of the living.” On the other hand, it was said in Ellison v. Commissioners, 58 N. C. 57: “If the grounds be arranged and drained, and the burial of the dead be conducted as elsewhere in such establishments, we incline decidedly to the opinion, it will not be a nuisance, either public or private.”

We cite those cases only for the purpose of showing that the defendant is not justifiable in asserting that its land should have been excluded from the sewer district merely because it is a cemetery. There is no evidence in the case to show that sewers are not beneficial in the sanitation of this cemetery. In the absence of a showing to the contrary, we must presume that the Common Council was fully informed on that subject, and acted properly in accordance with that information. The evidence does show that the sewers for the construction of which the tax bills were issued serve to carry away the surface water from the cemetery.

Appellant claims that the cemetery might have been made into a sewer district by itself, so as to relieve it of the burden of construction of the lateral sewers. True, it might have been done; but there is no reason appearing why it should have been done. The appellant complains, not that a discrimination was made against it, but that no discrimination was shown in its favor. We have seen that the law has through all the past' discouraged the location of cemeteries in populous districts. Real estate men who were witnesses on both sides in this case testified that the cemetery affected the value of real estate in that vicinity. We feel justified in assuming that such value was thus affected adversely. There is no sound reason why the cemetery should be relieved of its' share of the burden of getting rid of a condition, caused to some extent by its presence there. The district, so far as we can understand the situation, is homogeneous, a proper “unit” in the general system of sewers. By carrying out the work of sanitation the cemetery may become more and more a comfort and an ornament to the community, and that community may become a more attractive framework for the cemetery.

There is another fact in the case which deserves consideration. The tax bills against the land of the defendant seem very large.- That is caused by the fact that there are thirty-five acres in the cemetery. The “area rule” is firmly grounded in our law. The Common Council had no choice in the matter except to tax the cemetery in proportion to its area, or relieve it altogether. It doubtless appreciated the serious difficulties in the matter, but its judgment must stand in the absence of evidence sufficient to show that it was unreasonable. Complaint is made that the court excluded evidence offered by defendant to show that in two other cases cemeteries were made separate districts. Whether the facts connected therewith were similar to those in this case is not shown. It may have been found by experience that such discrimination in favor of the cemeteries was not just to the other land in the vicinity.

II. Appellant contends that as there was no provision in the law for giving it notice of Ihe proceedings resulting in the issuing of the special tax bills in question, an enforcement of such tax bills will result in taking its property without due process of law. It is sufficient to say that such tax bills are legislative assessments, and no notice is necessary unless required by “some charter, ordinance, or statutory provision to the contrary.” [Embree v. Road District, 257 Mo. 593.] That opinion was affirmed on writ of error to the Supreme Court of the United States. [240 U. S. 243,]

III. Appellant makes the following point: “The judgment of the trial court in enforcing the whole amount of the special tax bills ...... . , ,, , as a single lien against the property now owned by defendant, including that part of the amount of said tax bills computed on the area of land already sold by defendant, amounts to a denial to the defendant of the equal protection of the laws, in violation of section 1 of the 14th Amendment to the Constitution of the United States.”

We are furnished with no authorities or even argument on that proposition. On the last appeal it was held, in effect, that the ownership of all the land in the cemetery for the purpose of such taxation is in the appellant. Such being the case, the tax bills were properly issued against the cemetery as an entirety.

IV. Complaint is made that the trial court erred in excluding evidence as to two other tax bills for sewer purposes issued against the property. We are hound to presume that all other property in the district paid in the same proportion. Without deciding whether such exclusion was error, we hold that it was not such error as calls for a reversal herein.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

— The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All the judges concur.


text:
    BERTIE MARIE ROBINSON, now BERTIE MARIE BENNETT, v. BUDD M. ROBINSON, Appellant.
    Division Two,
    May 31, 1916.

    1. MAINTENANCE OF MINOR CHILD: Divorce: Subsequent Modification of Decree. Custody in the statute pertaining to minor children of parents who are being divorced is conjoined with maintenance, and. jurisdiction as to custody gives jurisdiction as to maintenance; and notwithstanding the decree dissolving the marital relation and granting the custody of a minor child to the wife is silent as to its maintenance, the court has authority, under Sec. 2381, R. S. 1909, declaring that “there may be a review of any order or judgment touching the care, custody and maintenance of the children,” after the lapse of the term, to modify the judgment and grant to the wife a •definite allowance for the future maintenance of the child. [Disapproving Lukowski v. Lukowski, 108 Mo. App. 1. c. 207, and Seely v. Seely, 116 Mo. App. 1. c. 362.]
    2. -: -: -: Change of Venue. A proceeding to have a decree granting to the wife a divorce and the custody of a minor child so modified as to include an allowance to her for the maintenance of the child, is not a suit within the meaning of the statute, and no change of venue can be granted.

      3. -: Excessive Allowance. Where in an independent action the mother had recovered judgment of $1500 for the support of the minor child for the five years intervening between the date of the divorce decree awarding her the custody of the child and the date of the institution of the proceeding to modify that decree so as to allow her a definite annual sum for maintenance, and the evidence shows that what property defendant has is burdened with debt, an allowance of $500 a year will be reduced to $300.
    Appeal frqm Jasper Circuit Court. — Eon. J. D. Perkins, Judge.
    Affirmed (as modified).

      Spencer, Grayston & Spencer for appellant.
    (1) In the original case, the plaintiff did not ask nor did the decree award anything for the maintenance, support and education of the child, and therefore the court was without jurisdiction to make any order touching such matters in this case. Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362; R. S. 1909, secs. 2381 and 2375. (2) For the same reasons, the evidence did not warrant the court in making any order touching or concerning the support, maintenance and education of the child. (3) The court erred in overruling defendant’s application for a change of venue.

      Fred W. Kelsey for respondent.
    (1) “The rule in Missouri is well settled where the decree of divorce is silent on the subject of the children, the liability of the father to support his minor children remains in full common law vigor, though the mother is awarded their custody, as here.” Viertel v. Viertel, 212 Mo. 576; Meyers v. Meyers, 91 Mo. App. 151; Cox v. Vogle, 152 Mo. 596; Lusk v. Lusk, 28 Mo. App. 91; Rankin v. Rankin, 83 Mo. App. 535; McCloskey v. McCloskey, 93 Mo. App. 398; Maxwell v. Boyd, 123 Mo. App. 334; Keller v. City of St. Louis, 152 Mo. 596. (2) “The power of the court to make an order directing the father to provide for the maintenance of the minor children, under petition in the suit, long after final decree has been entered, is well established where the decree contains no provision on the subject.” 14 Cyc. 811; 9 Am. & Eng. Ency. Law, 872; 7 Ency. PI. & Pr. 131; Bishop on Marriage, Divorce & Separation, secs. 1212 and 1223; Hill v. Hill, 82 N. E. 690; Kraus v. Kraus, 98 Mo. App. 427; Shannon v. Shannon, 97 Mo. App. 119; Meyers v. Meyers, 91 Mo. App. 151; Chester v. Chester, 17 Mo. App. 657; Pretzinger v, Pretzinger, 45 Ohio St. .452; McAllen v. McAllen, 106 N. W. 100; Marks v. Marks, 118 N. W. 694; Keesling v. Keesling, 85 N. E. 837; Connett v. Connett, 116 N. W. 658; Tobin v. Tobin, 64 N. E; 624; Harris, v. Harris, 5 Kan. 46; Holt v. Holt, 42 Ark. 623; Brow v. Brightman, 136 Mass. 187. (3) The weight of authority in Missouri supports the general rule that where no provision is made for the support of the child in the decree of the divorce, the mother may, at a subsequent term, obtain an order modifying the decree, requiring the father to provide future means for the support of the child. Shannon v. Shannon, 97 Mo. App. 119; Meyers v. Meyers, 91 Mo. App. 151; Chester v. Chester, 17 Mo. App. 657. Contra: Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362. (4) The statute authorizing the circuit court to make orders in divorce cases, is not to be strictly construed. In re Morgan, 117 Mo. 254; 9 Am. &'Eng. Ency. Law, 866; 14 Cyc. 804. (5) The statute is capable of a construction which would authorize this proceeding and the construction contended for by the appellant would deny the court the right to discharge its duty to the children which are its ward. K. S. 1909, secs. 2381. and 2375 > Harris v. Harris, 5 Kan. 53; Keesling v. Keesling, 135 N. E. 337; Tobin v. Tobin, 64 N. E. 624. •

      NOTE. — Certified to Reporter November 3, 1916.

   WALKER, J.

— This is an appeal from a modified decree of divorce. At' the June term, 1907, of the circuit court of Jasper County the respondent obtained a decree of divorce from the appellant.

The petition complied with the formal requisites in a pleading of this character and, among other things, alleged that there was a child born of the marriage, a boy, náming him, then nine years of age. Respondent then prayed in substance as follows; to be divorced from the bonds of matrimony contracted with defendant; that she have the care and custody of her infant child, and that the court adjudge to her, out of the property of defendant, such support and maintenance and for such time as the nature of the case and the circumstances of the parties require, and that, if necessary, defendant be compelled to give security for such maintenance, and that the court make such further orders and judgments from time to time, touching the premises, as shall seem meet and just.

The decree was rendered in conformity with this prayer, respondent being awarded $7000 alimony in gross and certain real estate. No order was made concerning the maintenance of the child. The appellant promptly satisfied the judgment thus rendered. Five years thereafter, at the June term, 1912, of the circuit court of Jasper County, the respondent, who had, in the meantime, married and removed to the State of Oregon, taking the child with her, filed a motion to modify the decree theretofore rendered in said cause. The motion asked that the court make an order allowing respondent a sum for the education and maintenance of the child. The appellant filed an application for a change of venue, which was overruled. The court proceeded to hear evidence‘on the motion to modify the decree, sustained same and allowed respondent $500 per year for the maintenance and education of the child. Prom this ruling the case was appealed to the Springfield Court of Appeals, and from the judgment of affirmance rendered therein (168 Mo. App. 639) the case was formally certified to this court on the ground that the decision rendered in said Court of Appeals was in conflict with prior rulings of the St. Louis Court of Appeals (Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362).

■ The errors assigned are (1) that the court was without jurisdiction in making the order modifying the decree; (2) that the defendant should have been awarded a change of venue; and (3) that the amount allowed for. maintenance was excessive.

I. The matter at issue involves the construction of sections 2375 and 2381, Revised Statutes 1909. Such portions of said sections as are pertinent to'the matter under review are as follows:

“ Sec. 2375. When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall he reasonable. . . . The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may he proper.”
‘ ‘ Sec. 2381. . . . There may he a review of any order or judgment touching the alimony or maintenance of the wife, or the care, custody and maintenance of the children.”

Respondent contends that under these sections the judgment of divorce, which contains no reference to the child other than to award its custody to the mother, may, upon motion subsequent to the term at which the judgment was rendered and after its satisfaction, be so modified as to require the father to provide for the child’s support; and so the trial court held.

The appellant contends that upon the facts stated no such modification can be made. That if section 2375 stood alone it would authorize -the court, only when the divorce was adjudged, to make such an order for the child’s care, custody and maintenance as from the circumstances of the parties and the nature of the case shall be reasonable. That if the sections are read together the court is empowered to review the judgment' touching the care, custody and maintenance of the child either at the time the divorce is granted or during the same term or thereafter, under the limitation of the statute, if the court has, by the terms of the judgment, retained jurisdiction of the child, and not otherwise.

Absolute divorce, as recognized by our law, and the consequent power of courts granting same to make provision for the care, custody and maintenance of minor children after marriages are dissolved, is of purely statutory creation. This, however, does not necessitate a strict construction of this class of statutes, but they should be so construed in view of the subject of legislation as to fully effectuate the purpose of their enactment (In re Morgan, 117 Mo. l. c. 254), due consideration being given of course to the rule in regard to the finality of judgments and the lack of the court’s authority over same after the term whén they were rendered.

In the instant case, as stated, no reference to the child appears in the decree other than to award its custody to the mother. A cursory reading of the statute would lead to the conclusion, under the state of facts.here present, that the contention of the appellant should he sustained.

This rule of law must he borne in mind, however, that regardless of divorce proceedings, when both parents are living the primary liability for the support of a minor child is, in this State, as it was at common law, upon the father. [Viertel v. Viertel, 212 Mo. l. c. 576; Keller v. St. Louis, 152 Mo. l. c. 599.] Cases illustrating the enforcement of this liability are far more frequent as a sequel to divorce proceedings than as independent actions. The reason is obvious. The severance of the marriage relation disrupts the family, renders the support and rearing of minor children precarious, and thus militates, in the absence of remedial legislation, against the public welfare. Hence the enactment of statutes of the character here under review, which simplify procedure and obviate the expense and delay of independent actions. No difficulty is encountered in applying the statute where it is sought to ascertain and determine the limit of the father’s liability for support of a minor at the time the divorce is adjudged or thereafter during the term of its rendition. The exercise of the power at the time of the adjudication, being clearly and explicitly defined by the. statute, admits of no controversy, and the right of the court to modify this, as any other judgment, during the term constitutes an inherent exercise of judicial power. [Kansas City v. Woerishoeffer, 249 Mo. 1.] But a question as to the father’s liability not so easy o£ solution is presented when we are confronted with the facts that the decree makes no reference to the child other than to award its custody to the mother and that years have flown since the term closed at which the decree was rendered.

Leaving out of consideration for the nonce the power given the trial court under .section 2381, supra, and weighing the facts in the balance of reason, it is evident that at the time of the rendition of this decree it was not contemplated or expected that the father should provide for the support of the child. While there is no evidence of collusion, it does appear that the award to the wife of $7000 cash as alimony in gross and a deed to a half of a farm which had cost the husband $25,000 was, at the time of the decree, deemed by the wife eminently satisfactory. This allowance, in view of the husband’s pecuniary condition, was more than just, it was liberal. As a further circumstance showing that the support of the child was intended by the parties to be included in and made a part of the award to the mother, it appears that she rested content, "raising no question as to a modification of the decree until five years after its rendition. During all of this time having the custody of the child she provided for its maintenance out of her ample allowance without protest. Much as these facts may appeal to one’s sense of substantial justice as determinative of the question of the child’s support, and regardless of the purpose and intention of the mother at the time of the rendition of the decree, the law regards the rights of the child as paramount to that of the parents (Tatum v. Davis, 144 Mo. App. l. c. 129), and, mindful of the primary liability of the father, we are to determine from section 2381, as supplemental to section 2375, whether the trial court possessed the power to make the modification of which the appellant complains. That the terms of the decree did not authorize an alteration therein providing for maintenance as is provided in section 2375 alone, is, we think, evident. Alteration can only be made in something then in existence; but when we consider section 2381 we find it provides, so far as the child is concerned, that “there may be a review of any order or judgment touching . . . the care, custody and maintenance of the children.” "While it is true that there is no reference in the decree to maintenance, there is a finding therein as to custody sufficient to enable the court to retain jurisdiction of the case until the child reaches its majority. [Phipps v. Phipps, 168 Mo. App. l. c. 702; Wald v. Wald, 168 Mo. l. c. 384.] Custody in the statute is conjoined with maintenance, and it is no strained construction to hold, in view of the purpose of the law and the paramount rights of the child, that jurisdiction as to custody gives jurisdiction ■ as to maintenance. This being true, we hold that the court was authorized, notwithstanding the silence of the decree and the lapse of the term, to make the modification of which appellant complains. The decrees in Lukowski v. Lukowski, 108 Mo. App. l. c. 207, and Seely v. Seely, 116 Mo. App. l. c. 362, provide for the custody of the children, and in so far as these cases are contrary to the ruling herein regarding the trial court’s jurisdiction they are overruled.

II. There is no merit in the contention that error was committed in refusing the appellant a change of venue. The motion for the modification of tbe decree was but a continuation of the original action, and hence was not “a suit” within the meaning of the statute authorizing changes of venue. [Sec. 1927, R. S. 1909: Cole v. Cole, 89 Mo. App. 228.]

III. In view of the means, in a money sense, of the appellant, we are of the opinion that the allowance for the child’s support was excessive, and we so hold.

A recent independent action was instituted by the mother of the child here in question, to recover from the father the expenses incurred by her in the sup-port of the child for the period of five years in-, tervening between the date of the divorce and the' institution of the instant action. A judgment was| rendered in this suit in favor of the mother requiring the father to pay a gross sum of $1500 in satisfaction' of her claim, or at the rate of $300 per year for thn child’s support. The Springfield Court of Appeals affirmed this judgment (180 Mo. App. 56). Repre-j senting, as it did, actual expenditures, its finding isj more than persuasive as to- what the allowance per annum should have been in the case at bar. However, the judgment in the independent action but. serves at best as a reason by analogy in determining, what constitutes a reasonable amount to be paid byi the father for the support of the child. A fact more cogent in determining this amount, and one that no court can well ignore, is the proven pecuniary condi-] tion of the father. The evidence showed that while he possessed some prospectively valuable property, it was burdened with debt and that he had no ready money. Justice in a case of this character need not be tempered with mercy, but it should be administered with reason. What would constitute a reasonable judgment against a man of substantial property might prove a burden too heavy to be borne if imposed upon one already laden with debt and besieged by creditors. These platitudes, however, are unnec-! essary in the face of the plain facts.

Under all the evidence, we are of the opinion that the judgment as- modified by the trial court should be reduced so as to require the father to pay the sum of $300 per annum, instead of $500 for the same period, for the support of the child, and it is so ordered. This having been done, the judgment of the trial court will be affirmed.

All concur.