238 Mo. 323 | Mo. | 1911
This is a proceeding begun in the circuit court at Kansas City for the “purpose of enforcing a grading ordinance, approved October 25, 1906, entitled: “An ordinance to grade Independence and Westport road from Oak street or Gillham road to Janssen Place.”
A certified copy of the ordinance was filed in the circuit court, and publication thereof was made as prescribed by section 5 of article 8 of the charter, which was adopted by Kansas City in pursuance of the enabling act contained in article 9, sections 16 and 17 of the Constitution of 1875.
Before the expiration of the time provided for filing the claims for damages, defendants, Eichard Smith and Olivia Smith, appeared and filed separate answers to said proceeding, each of which denied the existence of the road referred to in said ordinance; admitted that many years ago a road of that name “of an uncertain and irregular width, varying from one rod to thirty feet,” but of no uniform width and not forty feet wide in any place, had been used by the public between the towns of Westport and Independence, Missouri, but averring that said road was never legally established nor worked by the road officials of Jackson county, Missouri, nor changed, nor improved by the city officials of either the city of Westport or Kansas City, Missouri, while it was within their respective limits; and averring that since the year 1885 no public money or labor had been expended on said road. The defendants answered further, that from the settlement of the adjoining territory (which took place in 1885 and 1887) the traveling public ceased to
The answers then set forth the portion of the road which it averred belonged to the respective defendants, and concluded, to-wit: “By reason of all of which, this defendant avers that the said Independence and Westport road, which is now sought to be graded in this proceeding, under the said Ordinance No. 34157, has long since been abandoned as a public road and highway; that the object and purpose for which it was originally set apart and used by the public has long since passed away; that its legal existence as a State or county road and thoroughfare has long since lapsed and been abandoned by the public; that plaintiff, Kansas City, Missouri, by its acts and proceedings as above enumerated, is and ought to be estopped to claim any portion of this said road as and for a public street or highway. Wherefore, this defendant prays that this proceeding be dismissed and that he recover his costs herein expended.”
The aforesaid answers were filed by leave of court. Thereupon the defendants moved the court for a trial of the issues raised by their separate answers by a common law jury of twelve jurors, and alleged as grounds for said motion, to-wit:
*327 “1st. That each and every issue raised by the separate answers of the defendants, Richard Smith and Olivia A. Smith, filed in this cause, is an issue of fact, and as such is triable only by and before a common law jury.
“2d. That the said separate answers filed herein raise more particularly the issue of fact as to whether the said alleged road sought to be graded in this proceeding has not in fact been abandoned by the public long prior to the institution of these proceedings and the passage of the ordinance of Kansas City, Missouri, on which these proceedings are based.”
This motion was overruled by the court, to whose action in so doing defendants duly excepted and presented a bill of exceptions, which was signed, sealed and delivered to the court, and made a part of- the record the 16th day of January, 1908. Thereupon, the cause was tried before the court, and the respective parties presented the testimony of many witnesses, covering a long period of time, bearing on the issues raised by the answers of the defendants.
After hearing all the evidence and refusing a number of declarations of law, requested by defendants, the court gave four declarations of law at the request of defendants, two of which are, to-wit:
“II. The court declares the law to be that under the charter of Kansas City, Missouri, no ordinance to grade' a street or highway can have any legal effect or validity if, at the time of the passage of such ordinance to grade, such street or highway did not have any legal existence.
“III. The court declares the law to be that in proceedings to grade public streets and highways under the charter of Kansas City, Missouri, and the general law, the jurisdiction of the .court depends on the validity of the ordinance to grade, • and, if the ordinance be null and void for,any reason, then the*328 court is without jurisdiction and such proceedings must he dismissed.”
After argument of counsel, the court handed down its decision on the 14th of December, 1907, which recited the previous steps taken in the cause; the refusal of defendants’ demand for a common law jury and the exception saved to that ruling; and announced the following finding of facts upon the issues joined:
“1st. Ordinance No. 34157, entitled ‘An ordinance to grade Independence and Westport road from Oak street or Gillham road to Janssen Place,’ was passed by the common council of Kansas City, Missouri, and was approved by the mayor October 25, 1906.
“2d. The said road when in Jackson county, Missouri, was located, laid out and put in use about 1841, by' proceedings in the county court of said county, pursuant to the law of the State then in force, and became a State and county road, and was worked by the county as such up to the year 1887. It was a public traveled road for some years prior to 1841, and the commissioners appointed by Legislature laid out the road along the line where the road theretofore traveled had been, and where the road was at the time of the passage of said ordinance.
“3d. In 1891 the limits of Westport were extended over the territory which included that portion of the road described in said ordinance, and, thereafter, in 1897, such territory became part of Kansas City, Missouri, by an extension of its limits.
“4th. That portion of said Independence and Westport road mentioned in said ordinance has never been vacated, abandoned or closed, and no ordinance of any city or resolution of the county court was ever passed to that effect, but at all times since it was opened for use, about 1841, up to the time of the passage of said ordinance, it was actually open, and actually used as a public highway, thoroughfare, and passage*329 way for the public as follows: Up to about, the year 1887, it was used generally by the public; after said time and until about the latter part of the year 1897 the use by the public was not so general, because other streets in the general neighborhood had been opened; from the latter part of the year 1897 to the time the construction of the sewer hereinafter mentioned it was used by the people living upon what was called the Perkins or Flower tract, and by the Cambie family who lived in a small house east of the Perkins tract, such as tradespeople who had need to deliver merchandise there, and by visitors to said houses, and was open so as to be used by all of the public who had need to use it until about March, 1907, at which time it became impassable by reason of the construction of a sewer in said public highway.
“5th. That the land sought to be graded is a public highway; and that the only rights of the defendants, Richard Smith and Olivia Smith, therein are those of abutting property Qwners.
“6th. No claims for damages have been presented or filed, although the court now offers leave to defendants to file same, which defendants decline to accept.”
Upon this finding of facts, the court held it had power and jurisdiction to act as provided in the charter of Kansas City respecting the grading of streets, and denied the defenses set up in the answers of defendants. To which action of the court in finding the facts aforesaid the defendants objected and at the time excepted. After judgment upon said finding and decision of the court, defendants, Richard Smith and Olivia Smith, duly filed their motion in arrest of judgment and for a new trial.
Both in their motions for new trial and in arrest, the defendants specifically complained of the refusal of the court to grant them a jury trial in this cause, and duly excepted to the action of the court in over
OPINION.
I. The power to grade its streets and highways is regulated by the charter of Kansas City, Missouri, article 8, sections 1 to 16 inclusive, Charter and Revised Ordinances 1898, p. 126. In the enforcement of ordinances made for that purpose, the action of the circuit court is set in motion by filing therein a certified copy of the grading ordinance. Thereupon, notice by publication is given to all persons whom it may concern, fixing the time in which claims for damages must be filed or barred. The hearing of such claims is before six commissioners, who may hear evidence and visualize the property and report the actual damages or just compensation of the respective claimants “under such instructions as shall ... be given them by the court or judge.” Any person aggrieved may appeal. The article contains this further provision: “The proceedings herein shall in all respects not herein provided for conform as near as may be to the practice and procedure in civil cases.” [Ibid., secs. 7 and 11.]
The specific issue presented by the filing of a claim for damages is the only one which may be tried in the circuit court by 'the six commissioners. The charter makes no express provision for the trial of any other issue. It was held, prior to the adoption of its present charter, that this single issue might be constitutionally referred to this board of six commissioners. [Kansas City v. Hill, 80 Mo. 523.]
It was also ruled that the use of five men as a jury or body of commissioners, appointed by the circuit court to assess damages sustained for the taking of property for the construction of a plank or macadamized road, did not contravene the provisions of the
In the case of State ex rel. v. Field, 99 Mo. 352, the question was whether or not the charter of Kansas City, adopted under authority of the Constitution on April 8, 1889, was controlled by the general provisions of the Act of the Legislature of 1885, which prescribed the method for the assessment of damages and benefits in grading and regrading streets in cities. The enabling act (constitutional provision permitting the adoption of this charter) declared that the charter adopted thereunder should supersede all laws then in force. The court ruled: “This matter of assessing damages and benefits for grading and regrading streets naturally falls within the domain of municipal •government. The Act of 1885, as amended, is one of those laws which the enabling act declares shall be superseded by the adopted charter. When the present charter of Kansas City became a law, the eighth article suspended and took the place of the general law of 1885.”
It may also be conceded that at common law the right of trial by jury in condemnation proceedings did not exist in the absence of constitutional or statutory provisions conferring such right. [St. Joseph v. Geiwitz, 148 Mo. l. c. 216, and cases cited.] This rule, however, has now been altered by the Constitution. [Art. 12, sec. 4.]
It is apparent that none of these cases nor any of the provisions of article 8 of the charter of Kansas City have any bearing whatever on the point presented for review by the appeal in this case, which is whether the defendants were entitled to a common law jury of
The question of a right to a jury trial was next presented to the court in a suit brought against a railroad for- damages to crops. The defendants pleaded settlement. The plaintiff replied that the settlement and release were procured by fraud. The defendants insisted that the act of the Legislature permitting a reply so framed was unconstitutional in that it would result in the abolition of suits in equity for the exertion of its peculiar power to annul and cancel fraudulent acquittances and settlements. This contention was denied. On that subject, this court, speaking-through Craves, J., in Division One, said: “This statute is challenged on the ground that it is violative of section 28, article 2 of the Missouri Constitution.
He then analyzed the cases bearing on the triability of questions of fraud in common law courts, and held that an issue as to the fraudulent procurement of such release was a jury question at common law, and concluded his discussion in the following language: “So that prior to this statute, and without considering the statute, this court has held that fraud in the procurement of a release' was properly pleaded in a reply and properly triable before a jury. The statute therefore does not go further than this court had done about the time of the passage thereof. The statute does not undertake to abolish all equitable jurisdiction, and has never been so considered by bench or bar.”
The action of the lower court in submitting that issue to the jury was affirmed.
This question of a right to a jury trial was recently considered by this Division in the case of Frowein v. Poage, 231 Mo. 82. That was a proceeding under the statute for the quieting of title, and the dispute between the parties arose as to which was the owner- of an accretion or increase of land formed between their respective properties by the action of the Mississippi river. Judge Gantt, speaking for this Division, on page 89, said: “There were no equities pleaded, either in the plaintiff’s petition and reply or the defendant’s answer, nor did the evidence tend to show a right in equity on either side. It was a plain contest at law, a question of fact, as to which tract the new made land in controversy herein was an ac
He held that the right to demand a jury trial was not waived by failure to renew the same in the motion for new trial or motion in arrest, since error was only shown on the record proper; and, therefore, available, although not made the ground of motion for new trial or motion in arrest, since all defects in the record proper may be taken advantage of for the first time in a court of last resort.
The foregoing decisions clearly show that parties to legal proceedings cannot be deprived, without their consent, of a trial by jury, composed as at common law, of any issue of fact for the trial of which it was necessary to call a jury when the first Constitution of this State was adopted. At that time, a jury of twelve men, unless waived by the parties, was necessary for the trial of all issues of fact arising in legal actions or proceedings. Juries were not called in suits of equity unless the chancellor of his own motion saw fit to submit some issue of fact to them, in which event it was competent for him to take the advice of a jury; but the findings of the jury on such issues were simply advisory and might be wholly disregarded by the chancellor when he came to render a decree in the cause.
II. The question of the abandonment of a public road or highway is not an issue for a chancellor or a referee, but is peculiarly one of fact for a jury and determinable by evidence of matters in pais. [Elliott on Roads and Streets (3 Ed.), sec. 1172; State v. Culver, 65 Mo. l. c. 609; R. S. 1899, sec. 9472; R. S. 1909, sec. 10446.]
In this case the defendants filed no claim for damages as owners of abutting property, but set up the sole defense that there was no existing road; that the highway referred to in the ordinance had been wholly abandoned by the public and that the city had never acquired any easement therein for street or road purposes and that the ordinance was therefore a mere “brutum fulmen” without any basis for its operation or enforcement.
The learned trial judge correctly ruled that the validity and operative force of the ordinance depended upon the fact of the existence or the abandonment of the road therein referred to when the ordinance was enacted. This was a correct view of the case, for it would be absurd to hold that a city had power to grade a road, either before its establishment or after its abandonment. The learned trial judge treated the issue of abandonment as presenting a question of fact which must be tried before he could proceed to enforce the grading of the road. This was an accurate conception of the issu.es presented by the answers of de
III. Our conclusion is that the defendants were entitled to have the issue of abandonment, set up in their answers, tried as if made in an ordinary legal action wherein it was asserted as a defense, and that it should have been submitted to a common law jury of twelve men. The law designs to avoid circuity of action. This can be done by permitting the defendants in this case to have a jury trial as to the issues of fact presented in their answers. If the verdict of the jury should be against them, the court may then proceed to enforce the ordinance as directed in the charter; and the defendants will be concluded by the adjudications invoked in their answers from thereafter bringing an independent suit to recover the property or establish a title thereto.
For these reasons the verdict and judgment herein will be set aside and reversed, and the cause remanded for further proceedings in conformity with this opinion.
The foregoing opinion of Bond, C. (while sitting in Division No. 2), is adopted as the opinion of the court.