47 Mo. 479 | Mo. | 1871
delivered the opinion of the court.
The relief prayed for in this case was to restrain by injunction the defendants from taking possession of or in any manner disturbing the plaintiffs in the peaceable enjoyment of their land, which was claimed to be condemned for a wharf under certain proceedings before the land commissioner. There was also a prayer to restrain the commissioner from issuing certain executions and the marshal from collecting them, and to set aside the proceedings had before the land commissioner and to declare them illegal and void. The court granted the injunction, and the defendant appealed to this court.
The same point arises in this case that was passed upon and decided in Leslie v. City of St. Louis, namely: that no effort or attempt was made, prior to proceeding to condemn, to make an agreement with the owner in reference to a sale of the property. This was a violation of the law, and an omission which was fatal to the whole proceeding. There were other irregularities so gross and indefensible in their nature that to approve and uphold them would be sanctioning a departure from well-established legal principles, and would virtually place the property of the citizen at the mercy and caprice of the corporation. It has become too painfully true that under the exercise of the power of eminent domain, gradual approaches have been made upon the rights of property,.till it is a matter of doubt whether the owner can rely upon the possession of anything. The fashion is, upon every fancied demand or speculative interest, to despoil the proprietor of his estate.
Whilst there is nothing more important for the interests of society than this right of taking private property, upon just compensation being made, for the public use, yet the right should be
The land commissioner, in his notice preparatory to proceeding to condemn the property, designated a day for impaneling a jury, and a jury was impaneled in accordance therewith. The jury consisted of six men, and had various sessions, and examined about forty witnesses from time to time; they passed upon each and every piece of property proposed to be condemned (there were 1,290 pieces in all), and agreed upon the amounts of assessments and benefits. Before the clerk had written out the result in a formal verdict, and the signatures of the jurors were appended, one of the jurymen.died and another left the country. The land commissioner, seeing the impossibility of obtaining a verdict from the impaneled jury, summoned and impaneled two new jurors, who were sworn in on different days; and these two, with the original four, who were not re-sworn, constituted the second jury. No new notice was given to the plaintiffs, or to any other of the land-owners, that the trial was to be had de novo; and this new jury, as thus impaneled, examined some six or seven witnesses, and then made and published their verdict.
The ordinance provides that when a jury is about to be impaneled for the purposes named, all parties, whether interested in damages or benefits, shall be notified that proceedings are about to be had, and that all such interested parties may appear and attend to their interests on the day and at the place appointed by the land comynissioner. This whole proceeding was therefore irregular, and would not be good in a civil action between parties litigating a private matter. The jury were not legally constituted or impaneled; no notice was given; and to say that an individual could be deprived of his property under such circumstances would be worthy only of that state of society where the sentiment prevails,
“ That they should take who have the power,
And they should keep who can.”
The proceeding was utterly void, first, because no attempt ivas made to make an agreement for a fair sale with the owner; and,
But the further inquiry arises, whether injunction is the proper remedy. Upon this point I am perfectly clear that it is not. The plaintiffs have a complete, adequate and ample remedy at law, and there is no necessity for resorting to equity. In a very recent decision in this court it was stated that it is now the well-settled principle of equity jurisprudence that the remedy by injunction is allowable against a mere trespasser when the injury sought to be averted goes to the destruction of the inheritance, or is otherwise irreparable in its character. But the sole ground upon which an injunction is granted in such cases is that the trespass complained of operates such irreparable mischief that it is not susceptible of adequate compensation in the way of pecuniary damages; and the party seeking it must bring himself within this principle before he can ,be entitled to this remedy. (Weigel v. Walsh, 45 Mo. 560; see also James v. Dickson, 20 Mo. 79; Burgess v. Kattleman, 41 Mo. 480; Echelkamp v. Schrader, 45 Mo. 505.) The trespass here sought to be enjoined may be compensated in damages, and if possession were taken of the property, ejectment would lie to try the title and show the illegality of the proceedings. Moreover, in cases of this description, where the property is sought to be taken through the instrumentality of courts or officers of inferior local jurisdiction, a full and ample means is afforded to review the proceedings, and have their validity passed upon by the common-law writ of certiorari.
This very question was recently reviewed and adjudicated by the Supreme Court of the United States in a case taken up, involving a proceeding by the municipal corporation of the city of St. Louis. The only question was whether injunction would lie, and, as the result of the best considered authorities, the court gave it as their conclusion that with the proceedings and determinations of inferior boards or tribunals of special jurisdiction courts of equity would not interfere unless it should become necessary to prevent a multiplicity of suits or irreparable injury, or unless the proceedings sought to be annulled or corrected were
For the reason that the plaintiffs misconceived their remedy, the judgment will be reversed and the petition dismissed.
