53 Mo. 224 | Mo. | 1873
delivered the opinion of the court.
It is charged by the petition in this case that the plaintiff was on the — day of March, 1870, the owner of and in possession of a lot of ground in the City of Springfield, in Greene county, (which said land is particularly set forth in
The defendant by its answer admits its incorporation as a city with the powers stated in the petition. It avers that the city council of said city, by virtue of the authority in its charter, passed the ordinance specified in the petition to widen and extend Walnut street west from South street to the city limits; that in pursuance of said charter, its Mayor caused a jury of six men, who were disinterested freeholders of the city, to be impanneled and sworn to assess the damages to each and every private property holder on said street, whose property was taken and appropriated to public use by widening and extending said Walnut street; that said Jury made their report and returned the same to the Mayor of the city in writing, signed by said jury; that said report or inquest
Wherefore defendant says that plaintiff has no right of action against defendant, and judgment is prayed.
A trial was afterwards had upon the pleadings, and after the evidence was heard, the jury returned a verdict for the plaintiff for three hundred dollars, upon which judgment was rendered.
It is shown by a bill of exceptions in the cause, that the parties admit that the verdict of the jury as to the amount of damages found for the plaintiff under the instructions of the court, is supported by the evidence. After the plaintiff had closed the case on his part, the defendant introduced witnesses by whom he offered to prove, that they had served on a jury awarded by the Mayor of the city, for ’the purpose of assessing damages 'to the plaintiff’ for opening the street in front of plaintiff’s premises, and that they viewed said premises as jurors, under oath, and that after taking into consideration the advantages and disadvantages to plaintiff in widening said street, they found that he was entitled to no damages or compensation from the city.
This evidence was objected to by the plaintiff. The court sustained the objection, and the defendant excepted. The defendant then offered to prove, by the inquest in writing, of said jury sworn to.assess the damages aforesaid, that the provisions of the city charter of defendant had been complied with, and that the said jury had determined under oath that said plaintiff was not entitled to any compensation for the land taken as aforesaid, and that plaintiff failed to apply to the mayor within ten days after the return of said inquest, and show any good cause, or any cause whatever, why said inquest shoidd be set aside, and a new assessment awarded. To the introduction of this last evidence, the plaintiff also objected, which objection being sustained, defendant again excepted.
“ In estimating the damages done plaintiff in taking land for street purposes, the jury have the right to consider the amount of land taken, its location, the trees, shrubbery and other things situate upon it, the damage and inconvenience of plaintiff by bringing the street up near the door of the plaintiff, and all the other facts connected with the taking of the property.”
To the giving of this instruction, the defendant objected, and his objection being overruled, he again excepted. The court was requested by the defendant to instruct the jury as follows :
1st. “That if they find from the pleadings in this case or from the evidence, that the land taken from the plaintiff, and appropriated to the street, was so taken or appropriated in pursuance of an ordinance of the city council, under and by virtue of the city charter, and that a jury of six disinterested persons, freeholders of said city, proceeded to assess compensation therefor, their verdict is conclusive in the matter unless the mayor of the city on good cause shown within ten days after such inquest of the jury, set the same aside.”
2nd. “It devolves on the plaintiff to prove to the satisfaction of the jury, that the property mentioned in his petition, was appropriated by the city, and the damage'occasioned thereby ; and if he fails to do either, they must find for the d efendant.”
3rd. “If the jury believe from the testimony taken in connection with all the facts and circumstances, that plaintiff was not injured by the appropriation of the strip of ground, described in straightening Walnut street in front of plaintiff’s lot, they will find for defendant.”
The court refused to give the instruction numbered one, but gave those numbered two and three. To the refusal to give instruction numbered one by the court, the defendant at the time excepted. After the judgment had been rendered against
This motion being overruled, the defendant again excepted.
The defendant then filed a motion in arrest of the judgment, because the answer of the defendant constituted a complete defense to the plaintiffs action, and it was not replied to, because the court had no jurisdiction of the subject of the action ; because the remedy furnished the defendant by the city charter is exclusive, and because the petition does not state facts sufficient to constitute a cause of action. This motion also being overruled, the plaintiff again excepted, and appealed to this court.
It is insisted by the appellant in this court, that the court below had no jurisdiction of the case; that the mode pointed-out by the statute for the condemnation of land for street purposes, and the manner of ascertaining the value of the pro.perty taken, and the payment of the price therefor in the charter of defendant, is exclusive, and that the plaintiff had no remedy when his property was taken for street purposes, but to follow the mode pointed out in the charter: In answer to this, it is only necessary to say that the charter of defendant affords no remedy to the plaintiff, where his property is unlawfully taken for street purposes, or for other public purposes. A means is provided by which the city can ascertain the value of property desired for said purposes, and then can take the property without the consent of the owner by paying the value thus ascertained; but if the city should take the property and refuse to pay the owner, no means is furnished by the charter by which he can enforce the provisions of' the statute, or compel the city to pay for the property ; but the owner is left to his action of trespass or other common law remedy for redress. (Soulard vs. City of St. Louis, 36 Mo. 546, and cases cited.) The petition in the caseimder consideration is substantially the same as the one in the case just cited, which was held to be good, and to sufficiently set out the cause of action
§ 3. All persons impanneled to inquire into the amount of benefits or damages which shall happen to the owner of the property, proposed to be taken for opening, widening or altering any street, lane, avenue or alley, shall first be sworn to that effect, and shall return to the mayor, their inquest in writing signed by each juror.” (Sess. Acts 1855, p, 309.)
There is no provision in the charter requiring any notice to be given to the owners of property about to be taken for public use, that an inquest is to be taken to ascertain the damages to be sustained, so that the proceedings under this 'law may be wholly ex parte. It is therefore incumbent on the city when it claims to have acquired title to property, or to have divested the owner of the title to his land, to show that it has followed the statute in the most literal and strict manner. In the case under consideration, the answer of the defendant attempts to set up a compliance with the statute; but it is not pretended in the answer that any effort had ever been made to agree with the plaintiff as to the compensation to be paid him for his land, or that the plaintiff ever had any opportunity to agree or make any arrangement in reference thereto; but for aught that appears, the plaintiff, knew nothing of the matter. It is not even shown that the plaintiff had any knowledge that the city wanted his land for street purposes,
It follows that it was unnecessary for the plaintiff to file any reply to said answer as it set up no valid defense, and the court therefore committed no error in excluding the evidence to support the answer, and in refusing the instruction asked.
The only remaining question to be noticed is as to the instructions given to the jury in reference to the measure of damages to be assessed in the case. The jury were told that in the assessment of the damages to plaintiff for the appropriation of his land by the defendant, they should consider not only the'location of the land, the trees, shrubbery, and other things thereon; but also the damage and inconvenience to plaintiff by bringing the street near his door, an'd all other facts connected with the taking of property. This instruction was calculated to mislead the jury, and ought not to have been given. The defendant in this case had appropriated plaintiff’s land to a public use by adding a part of.it to a public street. The city is authorized to appropriate the land to said purpose by following the requirements of the law. This it had not done, and could not acquire any title to the land thereby or to the use of it without the consent of the plaintiff. The plaintiff by the bringing of this suit for damages for the lands taken, impliedly at least, consented to the public use of his land for the purposes of widening the street, which carried
the judgment is reversed, and the cause remanded.