80 Mo. 523 | Mo. | 1883
This is a proceeding begun by the City of Kansas, before the mayor of said city, under and in pursuance to its charter, (sections 1 to 6, inclusive, Acts of
No. 19,350.
An ordinance to amend an ordinance to open and extend Eighth street from Delaware street to Wyandotte street.
Be it ordained by the Common Council of the City of Kansas:
Section 1. That an ordinance No. 19,143, entitled “ An ordinance to open an extend Eighth street from Delaware street to Wyandotte street,” approved April 1st, 1880; be and the same is hereby amended so as to read as follows, to-wit: Beginning at the intersection of the south line ox T. Ii. Swope’s second addition to Kansas City with the west line of Delaware street, thence w.est along the south line of said T. H. Swope’s second addition to the east line of Wy-andotte street, thence south sixty (60) feet; thence east and parallel with the south line of said Swope’s second addition to the west line of Delaware street; thence northwardly sixty and six-tenths (60 6-10) feet to beginning, and all private property within said boundaries is hereby condemned for public use as a street, and just compensation thei’efor shall be assessed, collected and paid according to law.
Section 2. The common council hereby determines and prescribes the limits within which private property shall be deemed benefited by reason of the proposed improvement mentioned in the preceeding section, and be assessed and charged to pay .just compensation therefor as follows, to-wit; Beginning at a point on the west
Section 8. That the sum of $100 be, and the same is hereby appropriated out of the general fund to pay the costs and expenses of the proceedings necessary to condemn the private property so to be taken, and a part of such sum as may be assessed against the city of Kansas as benefits to the city and public generally by reason of opening and extending said street.
Approved May 4th, 1880.
O. A. Chace, Mayor.
Attest, V. D. Callahan, City Clerk. (Seal).
A map accompanying the proceedings, sets forth and exhibits the land to be taken, and the limits within which, “ benefits ” are to be assessed, to raise the money to pay for the same.
It seems there were eight or nine separate parcels of land sought to he taken and condemned, owned by about as many several parties; and about ninety or more separate and distinct parcels of land subject to be assessed with “benefits,” to raise the money to pay for the land so taken, and some hundreds of persons interested in the lands subject to be assessed with benefits, all of whom, are made parties defendants in the proceeding.
Such proceedings under the charter were had as resulted in a verdict from which an appeal was taken to the circuit court, where on a trial anew, before a jury of six men, there was a verdict and judgment from which the two Hidings on the one part, and said Swope on the other.
To this end separate “ agreed statements,” under rule 20 of this court, were made between these appellants, the. Hidings and said Swope on the one side, and the City of Kansas the plaintiff on the other, showing the cause of action, the defence and the evidence together with the rulings of the court thereon, and the exceptions saved to said rulings; which statements under said rule are here to be treated as the records in said respective appeals, and the causes therein considered and adjudged accordingly. By agreement in this court these two appeals or causes were argued and submitted together, and for convenience will in like manner be considered and determined together in one opinion.
The “ agreed statement ” in the Swope appeal, as far as material is as follows : The first exceptions saved were as follows:
“ The cause coming on to be heard, it appeared that the judge of the court has chosen the following named persons as jurors in this case (here follow six names.) At this point defendant, Thos. H. Swope, objected to the jury because it consisted of but six men, and at the same time requested a jury of twelve men, but the court overruled his objection and denied his request, to which action of .the court said defendant at the time excepted. Upon examination under oath, said jurors testified that they owned real estate and were freeholders in the City of Kansas, but had no interest in any real estate covered by this proceeding, at which point defendant, T. H. Swope, objected to the jury on the ground that they were not disinterested, but were directly interested, inasmuch as it would be to their interest to assess as little benefits as possible against the city, they and their property having to pay a portion of the same, which objection the court overruled, to which action of the court in so overruling said objection defends ant, T. IT. Swope, at the time excepted.”
On cross-examination defendant, Swope, asked the following question: “Does not the fact that the real estate proposed to be taken lies, and has lain for a great many years in the line of Eighth street and between the east and west parts of said street already opened diminish the value thereof ?”
The owners of said real estate objected to the question, to which action of the court defendant at the time excepted. Reference is here made to the map with the transcript in this court. It shews the ground taken to be a strip of ground between two portions of Eighth street, the object of the condemnation being to make a continuous street. Defendant, Swope, introduced six witnesses, experts in the value of real estate in Kansas City, who testified that the lot on the corner of Delaware street and the proposed improvements, would be benefited from twenty to twenty-five per cent, of the value of the same, from the fact of being made a corner lot, and no more, taking into consideration that the street would have to be graded, curbed and guttered and sidewalked, for which the corner would be taxed; and upon this point, this was all of the evidence, and the evidence of the value of this lot was, that it was the same as that of the north twenty feet upon Delaware, taken by the proposed improvement. By a corner lot, said witness testified, they meant one having a front of from twenty to twenty-four feet.
This lot so cornering on Delaware and the proposed improvement, was-designated on plat (map above referred to) as lot 13, in block 3, T. II. Swope’s second addition, said lot having a frontage on Delaware of 44 3-10 feet; and
The “ agreed statement” in the Iluling appeal, is to the effect following:
“On the question of benefit to the city by the proposed improvements, all of the witnesses swore it would be of some benefit. One swore it would not be large. The city engineer testified that one-tenth of the benefits should bo assessed against the city. Six witnesses fixed it at from five per cent to thirty per cent. 'Witnesses were introduced to prove the value of the ground to be taken. Reference is here made to the map with the transcript in this court. The said map shows the ground to be taken to be a strip of land between two parts of Eighth street, the object of the proceedings being to connect the two parts of said street and make said street continuous. Said defendant, Geo. D. Huling, introduced six witnesses, who were experts in the value of real estate in Kansas City, and they testified that the lots on the corner of Delaware street and the proposed improvement, would be benefited from twenty to twenty-five per cent of the value of the same, and no more, taking into consideration that said street would have to be graded,*531 curbed and' guttered and sidewalked, for which the corner would be taxed, and upon this point this was all the evidence. By a corner lot, said witness testified they meant one having a front on Delaware street of from twenty to twenty-four feet. The lot cornering on Delaware street and the proposed improvements, belonged to defendants Q-eo. D. Huling and Lucy S. ITuling, was designated on the plat as part of lot 194, Ross & Scarritt’s addition to the City of Kansas; said lot is a very narrow strip of ground which extends along the west side of said Delaware street, lying in a triangular shape. It extends along and fronts upon said Delaware street for the distance of 131 feet. Eorty front feet of this strip the plaintiff proposed, in the proceedings, to take for the opening of said Eighth street. The deepest part of said strip is at the south end thereof, where it extends back from the west line of said Dataware street twenty feet and ten inches, and from that line it gradually grows more shallow until it runs to a point. "Where said strip would corner upon Delaware street and Eighth street, after the latter has been opened, as proposed in this proceeding, the depth would be something less than eight feet ; accordingly, of the strip remaining, there would be left, after the north forty feet had been taken by the opening of Eighth street, a piece of ground that would front on Delaware street ninety-one feet, the greatest depth of which would be twenty feet, and the least eight feet. This piece of ground appears on the plat hereto attached, as that upon which .are written the names of Geo. D. Huling, this appellant, and Lucy S. Huling, said plat being a copy of the plat furnished by the plaintiff to be used in these proceedings and prepared by -the city engineer, as provided by law, which shows the location of the property of the appellant, Huling, with reference to the proposed street. The agreed statement contains a copy of the original plat, with the names of the owners of property to be assessed with benefits, and within the benefit district, as required b3 the city charter. Said strip was valued by the witnesses*532 at $50 per front foot on Delaware street, and this valuation was put upon the forty feet of said strip which would be needed for said improvement, and which the plaintiff proposed to condemn in these proceedings; one witness testified that the forty foot strip was worth $75 per front foot. Said witness further testified that the balance of said lot or strip belonging to said George D. IIul-ing, would be benefited about five per cent of the value thereof. The witness testified that the value of this strip of ground arose wholly from the fact that it excluded the property in the rear thereof from access to a business street, and that it was only worth what the owners of the property in the rear thereof could afford to pay for it, in order' to obtain for their property a front on Delaware street. That of itself it had no value, because it was not deep enough to be used for any business purpose profitably upon Delaware street; that the business transacted upon said street is done by firms engaged in the wholesale business almost exclusively. All the witnesses testified that property of full depth upon Delaware street, upon the west side thereof, and within the district prescribed by the common council as that deemed by it to be benefited by the proposed improvement, to be worth from $300 to $400 per front foot, and that upon the other side of the street, although not so deep, to be worth considerably more, because it extended through to another street used for retail business. The corner lots of twenty-four front feet were valued twenty-five per cent higher than inside property.” ' -
Accompanying the Huling abstract is a diagram explanatory thereof, which see next page.
At the close of the testimony, the court gave a number of instructions, some at the instance of the plaintiff, and others at the instance of various parties defendant, but it is deemed necessary here to insert but one of the number, so given, over the objections of these appellants, and to the giving of which, these appellants duly excepted. That instyiiction is number five, and is as follows :
*533 
The causes here relied on by these appellants for a reversal, are: 1st, The number and competency of the jurors; 2nd, The refusal of the court to allow defendant Swope, on cross-examination, to ask the following question: “Does not the fact, that the real estate proposed to be taken lies, and has lain for a great many years, in the line of Eighth street, and between the east and west parts of said street, already opened, diminish the value thereof.” 3rd, That the assessment of “ benefits ” against the city was too small; 4th, That the several assessments of “ benefits ” against these appellants, were excessive and unauthorized by the evidence in the cause ; 5th, That instruction number five was error.
On the other hand, it is objected by the city, the plaintiff, and on behalf of Reed, Brumback and others, who were parties defendants to the proceedings, but who acquiesced in the several assessments against them, and are not parties to these appeals of the Hulings and Swope, that this court cannot reverse in any event, because the case is not here according to rule 20 of this court; that the agreed statements were made by the city, on the one side, and by Swope and the Hulings on the other; and that no statement according to rule 20 could be made, unless all the parties to the proceedings agreed thereto.
As to the first point, the number and competency of the jurors, the city charter provides that: “On appeal,
On the second point, we are Unable to see any valid reason why the question might not be asked and answered. Like any other fact, it is a circumstance in the case, tending to show the value of the property in question, and might well be taken into consideration by the jury in estimating the value. How much weight it might or ought to have, is for the jury to determine. Its position between the two ends of the street sought to be connected, and its liability thus to be taken, might well enter into its market value, since purchasers, desiring to improve for business or residence purposes, might well hesitate to invest in property thus liable to be taken. Its exclusion by the court, we think, was error.
The third and fourth objections may be taken and considered together. The charter provides, (§ 3, p. 245): “ That the jury shall first ascertain the actual damages done to each person or corporation, in consequence of the taking of their property for such purposes, without reference to the proposed improvement, as the just compensation to be made therefor; and second, to pay such compensation, assess against the city the amount of benefits to the city and public generally, inclusive of benefit to any property of the city, and against the several lots and parcels of private property deemed benefited, as determined according to the last section; each lot or parcel of ground to be assessed with an amount, bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed.”
Under this provision the actual value of the property sought to be taken was assessed, in the aggregate, at the sum of $28,400. To pay for the same, the city was assessed with “ benefit ” to the amount of $1. The property of the
On the question of benefit to the city, the agreed statement sIioavs that “ all Avitnesses SAVore it would bo of some benefit. One swore it would not be large. The city engineer testified that one-tenth of the benefits should be assessed against the city. Six witnesses fixed it at from five per cent to thirty per cent.” As to the benefit assessed against the remnant of the Huling property not taken, if the evidence in the agreed statement is to have any weight, it would seem largely in excess of the actual benefit conferred. To a great extent, also, the same may be said of the benefits placed on the Swope property. But whether these assessments of benefits, in point of fact, be too low or too high, as claimed by appellants, from the view we have taken of these cases, need not now be determined, and we express no opinion on either of. these points. A trial, under proper instructions, might have secured a different result.
The material and controlling question, however, before us, grows out of the giving of the fifth instruction, supra. The charter expressly provides that: “ Parties interested may submit proof to the jury, and the latter shall examine personally the property to be taken and assessed.” Why may the parties submit proof, if the jury are at liberty to disregard the same, and make their findings from tlieir own observations alone ? It would seem a farce to introduce evidence, if it may be wholly disregarded. Why go to all the trouble and expense, if the jury may make their verdict from their own observation alone. We do not say or intimate what weight or importance the jury may, or ought to
The only remaining question is the objection here urged by the city, and also on behalf of Reed, Brumback and others, that the appeals are not here according to rule 20 of this court. That rule provides that: “ Parties may, in the courts of first instance, agree upon any statement of the cause of action, the defence and the evidence, together with the rulings of the court thereupon, and the exceptions saved to any ruling, which may intelligibly present to the Supreme Court, or any appellate court, the matters intended to be reviewed; and this statement, with a certificate of the judge before whom the cause was tried, that the same is a substantial history of what occurred at the trial of the cause, shall be treated as the record in all appellate courts, and the judgment rendered in the court of first instance shall be affirmed or reversed, according to the opinion entertained by the Supreme Court respecting the same.”
For the reasons herein before stated, each of the several judgments of the circuit court, herein appealed from, is reversed and the said several causes remanded for further proceedings, in conformity to this opinion.