262 Mo. 92 | Mo. | 1914
In this suit the city of Springfield, a city of the third class, seeks, by the exercise of the right of eminent domain, to condemn a strip of land belonging to defendant, for the purpose of widening a street known as Grand avenue in said city. The strip of land sought to be condemned is 30' feet in width and approximately 1320 feet in length, containing approximately ten-elevenths of an acre of land and is located along the south edge of a tract of farm land owned by defendant. As the time of the passage of the ordinance providing for the condemnation of this land, and the fixing of the benefit district, and also at the time this suit was instituted in the circuit court, the southern limits of said city ran along the south edge of Girand avenue at this place. The benefit district, as fixed by the ordinance, was confined to land north of Grand avenue, taking in a strip about 3001 feet in width, including some of defendant’s land, together with approximately 501 smaller tracts or lots belonging to other persons. The affidavit of the publisher making proof of' the publication of the notice required by section 9263', Revised Statutes 1909, was as follows:
“State of Missouri,
“County of Greene.
“H. S. Jewell, being duly sworn according to law, says that he is publisher of the Springfield Leader, a daily newspaper printed and published in the county of Greene, State aforesaid, and that the notice here*99 unto annexed was published in said paper for-weeks consecutively as follows:
“First insertion 11th day of December, 1909.
“Second insertion 10th day of January, 19101.
“H. S. Jewell, Publisher”
And duly sworn to.
Defendant was served with summons and appeared and filed answer and also motion to dismiss the action. Later the circuit court appointed three commissioners to assess the benefits and damages in the cause. Said commissioners made report finding the value of the land taken to be $880 and her benefits to be $518. And also assessed benefits against 50 tracts of land owned by other persons, at from $2 to $15 each, totaling $282. Defendant filed exceptions to the commissioners’ report and later a trial was had in the circuit court, before a jury, resulting in a judgment in favor of the defendant for the sum of $300-. Thereupon defendant duly perfected an appeal to this court.
That this rule of law is well settled in this State there can be no dispute. But does that rule of law aid appellant in the present case? In other words, does the above rule apply to the present facts? In this, as in the great majority of cases decided by ap
A review of the authorities requiring strict compliance with the statute will, in nearly every instance, disclose that the irregularity held to be fatal to the validity of the proceedings was the failure to perform some statutory requirement which was an essential prerequisite to establish the court’s right or authority to proceed against the right of the person complaining of such irregularity. Here we have no complaint from the persons- for whose especial benefit the statutory requirement as to publication was made. If those persons- were -here raising the question that said statutory notice had not been given, and it should appear that they had not waived the want of notice by having generally appeared to the proceedings below (City of Tarkio v. Clark, 186 Mo. 285, l. c. 298), then it might well be said that as to that issue, to-wit, the issue concerning the assessment against them, there could be little doubt but that the assessment was void for the reason that failure of sufficient publication of the notice would leave the court without jurisdiction to adjudicate the matter. But that issue is not here presented. In the present case there can be no doubt but that the court acquired jurisdiction over the person of the appellant by the service of summons and also
The great weight of authority is to the effect that in condemnation proceedings the general rule prevails that “the proceedings will be valid as to those having notice and invalid as to those not notified.” [2 Lewis Eminent Domain, par. 586; Mills on Eminent Domain, par. 95; 1 Elliott on Roads and Streets, par. 358; Town of Tyrone v. Burns, 102 Minn. 318; Ross v. Board of Supervisors, 128 Iowa, 427, l. c. 434.]
We do not undertake in any manner to say that the above general rule should be applied in all cases but leave that question open to be determined as the single instances may arise. However, we have no hesi
II. It is further contended that the compensation compensation, fixed by the jury was grossly inadequate. With reference to this point, it is sufficient to say that the evidence was conflicting. Some of the witnesses testified that the benefits accruing to appellant by reason of the proposed improvement were equal to the value of the land taken. Other witnesses fixed the amount approximately as allowed by the jury. Others fixed the compensation higher. Under such conditions, we cannot say that the compensation allowed was grossly inadequate and therefore will not interfere with the amount allowed by the jury. [St. Louis v. Calhoun, 222 Mo. 44, l. c. 55, and cases therein cited.]
Without passing upon the question as to whether or not under the evidence in this case appellant was entitled to the above instruction, it is a sufficient answer to appellant’s contention to say that the court in an instruction given on its own motion did tell the jury, in effect, that benefits accruing to land south of the proposed improvement should not be considered by them in arriving at appellant’s compensation.
The property south of the proposed improvement was not included in the benefit district as defined by the city council, and therefore was not subject to assessment. Furthermore, at the time the city council fixed the benefit district, the land south of the proposed improvement was outside of the territorial limits of said city and it is difficult to conceive how it could have been lawfully included therein.
V. It is contended that the court erred: (a) in refusing to permit defendant to show that the street when widened would not be of “uniform width;” (b) in permitting plaintiff to ask and witness to answer, over the objection of defendant, the question, “Would it be a very great advantage to have this platted that way and the south side of the addition to be up against a blind alley?”
Upon an examination of the record as to point a, we find that the court did permit defendant to show that a portion of Grand avenue was 80 feet in width" and that at the place where it was proposed to be widened it would be 60 feet. From those facts the jury could readily discover that the street would not be of uniform, width.
The judgment is affirmed.
The foregoing opinion of Wix. imams, C., is adopted as 'the opinion of the court.