| Mo. | Jun 30, 1903
This is a proceeding by Kansas City, begun in June, 1899, to condemn lands for a park, to be known as “West Terrace,” under an ordinance of the city passed and approved April 5th of that year. The lands sought to be condemned included 28.62 acres, of which amount the appellants William and Catherine Mulkey own about six acres, valued by the jury in the present proceeding at $55,590. For answer defendants William and Catherine Mulkey (the' appellants here) filed the following:
“Now at this day come the defendants, Catherine Mulkey and William Mulkey, her husband, and show to the court that heretofore, to-wit, át the. April term, 1896, of this court, the said city of Kansas City, under*236 and by virtue of an ordinance of said city providing for the establishment of said West Terrace Park, approved on the 11th day of September, 1895, duly instituted proceedings to condemn the same property of these defendants which said city proposes to condemn in this proceeding as a part of said West Terrace Park; that said proceeding was regularly prosecuted to a fina] determination in this court, and a verdict was rendered therein on the 5th day of October, 1896, duly assessing the value of defendants’ said property at the price and sum hereinafter mentioned. The said city filed no objections or exceptions to said verdict, and that on or about the 13th day of October, 1896, at the instance and request of said city, said verdict was confirmed and judgment rendered accordingly, condemning said property as and for said West Terrace Park. That said city never appealed from said verdict and judgment, and that the only parties who did appeal therefrom were Martha E. Bacon, James Munroe and Willard N. Munroe, owners of a small portion of the property in the benefit district, which had been assessed with benefits in said proceeding, said appellants giving a supersedeas bond, and that said appeal remained pending in the Supreme Court of Missouri, until disposed of, as hereinafter set forth.
“That afterwards, on the 23rd day of June, 1897, the park board of said city caused to be prepared and introduced into the Common Council of said city, an ordinance to repeal said first-mentioned ordinance, and to modify said West Terrace Park, by providing for the condemnation therefor of a part of the property condemned by said first proceeding, which said ordinance said Council refused to pass. That afterwards, on the 5th day of September, 1898, said park board pre-. pared and caused to be introduced into said Council another ordinance to repeal said first-mentioned ordinance and to reduce and modify said park, by providing for the condemnation therefor of a part only of the property*237 sought to be condemned under said first-mentioned 'ordinance, which said ordinance said Council also refused to pass. That in each of said ordinances so prepared and introduced by said park board, the property of these defendants was part of the property proposed to be condemned and taken as part of said West Terrace Park.
‘ ‘ That on the 5th day of April, 1899, with the concurrence of the Board of Park Commissioners, and before any benefits assessed in said first proceedings were paid, and not until then, an ordinance was duly passed by said city, repealing said first-mentioned ordinance, which said ordinance is in words and figures as follows;
[Here ordinance is copied in full.]
‘ ‘ That afterwards, on April 26, 1899, the attorneys for said city and for said Bacon and others, appellants in said first-mentioned proceedings, filed in the Supreme Court of Missouri, a stipulation in writing, in words and figures as follows:
“ ‘In the Supreme Court of the State of Missouri.
“ ‘In the Matter of the Condemnation of Laqd for opening and establishing a Public Park in the West Park District in Kansas City, Missouri, to be known as West Terrace.
“ ‘Kansas City, Respondent, v. Martha E. Bacon, James Munroe and W. N. Munroe, Appellants.
“ ‘stipulation.
“ ‘By authority of an ordinance of Kansas City, Missouri, number 11429, approved April 5, A. D. 1899, and entitled, “An ordinance to repeal ordinance number 6751, of Kansas City, Missouri, approved September 11, A. D. 1895, providing for the establishment of a public park in the West Park district in Kansas City, Missouri, to be known as West Terrace,” it is hereby stipulated between the respondent and appellants in the above entitled cause, that ah. order may be entered by this court reversing and remanding the above entitled cause to the circuit court of Jackson county, Missouri,*238 and Kansas City, respondent in the above entitled cause, hereby waives all right to exceptions to said order, and all right to file any motion for rehearing therein. Appellants to have taxed in their favor all taxable costs of appeal incurred by them.
“ ‘D. J. Haee,
Attorney for Respondent.
“ ‘Brown, Chapman & Brown, Langston Bacon,
Attorneys for Appellants.
“ ‘Filed April 26, 1899.
Jno. R. Green, Clerk.’
“That said Supreme Court, without hearing said cause, and pursuant to said stipulation and repealing ordinance, entered an order in said cause on the 26th day of April, 1899, in words and figures as follows:
“ ‘In the Supreme Court of Missouri, April Term, 1899.
“ ‘Court in Banc.
“ ‘In re West Park Distinct, Kansas City, Respondent, v. Martha E. Bacon, James Munroe, and Williard N. Munroe, Appellants.
“ ‘Appeal from Jackson Circuit Court.
“ ‘Now at this day come said .parties, by attorneys, and upon their stipulation it is considered and adjudged by the court that the judgment rendered in this cause by the Jackson Circuit Court be reversed, annulled and for naught held and esteemed, and that the said appellants be restored to all things, which they have lost by reason of the said judgment.
“ ‘It is further considered and adjudged by the court that the said cause be remanded to the said Jacio son Circuit Court for further proceedings to be had therein, and that the said appellants recover against' the said respondent their costs and charges herein expended, and have therefor execution.
“ ‘State of Missouri, Set.
“ ‘I, Jno. R. Green, clerk of the Supreme Court of*239 the State of Missouri, certify that the foregoing is a full, true and complete transcript of the judgment of said Supreme Court, entered of record at the April term thereof, 1899, and on the 26th day of April, 1899, in the above entitled cause.
‘‘ ‘ Given under my hand and seal of said court, at the City of Jefferson, this 4th day of May, 1899.
“ ‘ (Seal.)
John E. Green, Clerk.’
‘ ‘ That afterwards, the attorneys for said city procured an order to be entered in this court on the 27th day of May, 1899, dismissing said cause.
‘ ‘ All of which said orders and proceedings in said Supreme Court and in this court were without the knowledge or consent of and without notice to the said defendants. But these defendants say that nevertheless said city never did in good faith, or at all, abandon its design and purpose of appropriating the property of these defendants as and for a part of said West Terrace Park. That on the same day and at the same session of the Common Council of Kansas City, said ordinance repealing said first-mentioned ordinance and annulling said first proceeding, was passed, and immediately thereafter, to-wit, on the third day of April, 1899, the ordinance under which this proceeding was instituted was passed by the Common Council of said city; and that said repealing ordinance was approved by the mayor of said city, on the fifth day of April, 1899, at 11:10 o’clock in the morning; and at 11:20 o’clock in the morning of the same day the ordinance under which this proceeding was instituted was approved by said mayor, and that this proceeding was instituted in this court on the third day of June, 1899.
“That the ordinance under which this proceeding was instituted differs from said first ordinance and proceeding only in this — that the area of the .park to be established is less, by the amount of 16.51 acres, than was provided for in said first-mentioned ordinance, and that such reduction in area is accomplished by omitting*240 from the property to be taken *a portion of the property condemned in the first proceeding, bnt not including any property as a part of said park, that was not condemned by said first proceeding, the area under the first - proceeding being 45.13 acres, and under this proceeding 28.62 acres.
“And these defendants say that said city passed said ordinance repealing and annulling said first-mentioned ordinance and proceeding, and enacted the ordinance providing for, and instituted this proceeding, simply and solely for the purpose of omitting a part of the property originally included in said "West Terrace Park, and of securing the remainder thereof, to-wit, the defendants’ said property and the other property retained for said park, at a new, and if possible, a less valuation than was fixed by said first proceeding.
“And these defendants state that by reason of said first-mentioned condemnation proceeding and the continuation thereof by this proceeding, they were, from the institution of said first proceeding until this date, deprived of their right to sell said property or to improve the same, or to make other beneficial use of the same. That they were put to great cost and expense for counsel fees and otherwise, in defending their rights in said first-mentioned proceeding, and were thereby otherwise greatly damaged and injured.
“Defendants allege that to permit said city to take their said property in this proceeding at a less sum than was allowed them therefor in said first proceeding under all the circumstances hereinbefore set forth, would be contrary to the Constitution of this State, which prohibits the taking or damaging of private property for public use, without just compensation, and provides that no person shall be deprived of his property without due process of law, and would also be contrary to the fourteenth amendment to the Constitution of the United States, which provides that no State shall deprive any person of life, liberty or property without*241 due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
“Wherefore defendants say that said city, by rea7 son of the matters and things hereinbefore set forth, and the law of the land, is and- ought to be estopped to take the said property of these defendants in this proceeding for less than the sums awarded to them in and by the verdict and judgment of this court in said first-mentioned proceeding, which is and was as follows, to-wit:”
[Here follows a description of defendants’ property sought to be condemned with the amount of the award made to them by the jury in the first or prior proceedings.]
“Wherefore, these defendants pray the court to enter judgment herein, fixing the value of defendants’ said property sought to be taken in this proceeding, at the sum aforesaid, so awarded therefor-in said first proceeding, and for such other relief as defendants are entitled to in the premises. ’ ’
This answer, on motion of the city, was stricken out, and when the case came up for hearing, and before any evidence was introduced by the city, these appellants (two of a large number of defendants then before the court) objected to the introduction of any evidence as to the value of their property, except the verdict of the jury in the former condemnation proceedings referred to in their answer. When the city called its witness to prove the values of defendants’ property to be condemned, the defendants Mulkey objected to the witnesses testifying as to the value of their property, for the same reason given above — that the value thereof had been fixed by the jury in the former condemnation proceedings mentioned in their answer. This objection was overruled by the court, and the witnesses were permitted to testify, to which ruling and action of the court appellants duly excepted. At the close of the city’s testi
It will be observed that while defendants’ answer that was stricken out contains the statement that “the city never in good faith, or at all, abandoned its original design and purpose of appropriating the property of these defendants as and for a part of said West Terrace Park,” and also contained the further statement that the city “enacted the ordinance providing for the institution of this proceeding, simply and solely for the purpose of omitting a part of the property originally included in said West Terrace Park, and of securing the remainder thereof, to-wit, the defendants’ said property and other property retained for said park, at a new, and if possible, a less valuation than was fixed by said first proceeding,” they did not ask therein, nor. in any way seek, to have the present proceedings quashed, dismissed or abated for either of these reasons, nor do they plead-the trial and judgment in-tlie former proceeding in bar of the present proceeding; but on the contrary, their chief claim seems to have been that the city “ought to be estopped to take the said property of these defendants in this proceeding for less than the sum awarded to them by the verdict and
As said, while the allegation of want of good faith on the part of the city in abandoning the prior proceeding to condemn defendants’ property is contained in defendants’ answer, as also the averment that the subsequent or present proceeding was begun simply and solely for the purpose of securing defendants’ property at a new and less valuation than was fixed in the prior proceeding, the fact and circumstances under which the abandonment did occur, as well as the purpose of the change in the present proceeding, was set out and disclosed in the answer in such way as to rob the allegation of the want of good faith in the city'of all force, even though the subsequent part of defendants ’ answer had not disclosed the fact that their real purpose was not to have the present proceeding abated on account of the city’s want of good faith, but was to have the court, as they prayed it to do, assess thei:’. property in the present proceeding at the value fixed by the jury in a prior proceeding that had for its purpose, the condemning of defendants’ land along with that of the land of others, not included in this proceeding.
The chief question, then, for determination is, as we understand appellants’ position, did -the trial court err in striking out appellants’ answer setting up the verdict in the prior proceeding and in excluding such verdict and the judgment thereon from the consideration of the jury in the present proceeding, and in permitting them to consider other and independent-testimony as to the then valuation of the property sought to be taken under the present proceeding?
Appellants in their brief expressly say that no con
There is in this case no place for the application ■of the doctrine of res adjudicaba or estoppel, so much discussed in appellants’ brief. It is most certain that the city could not have availed itself in the present proceeding of the verdict establishing the value of appellants’ property in the prior proceeding. Against such an effort on the part of the city it would have been a complete answer to have said, 'You prosecuted the former proceeding under authority of an ordinance which you have since • repealed, and by the provisions of your charter, which is the sole law governing your right to prosecute the former, as this latter proceeding, it is provided that the repeal of the ordinance providing for a given improvement will operate to render void all proceedings had thereunder. In other words, such repeal leaves the parties thereto, and all findings therein, as if the proceedings had never been instituted.
x Section 19 of article 10 of the charter of Kansas City, provides:
“The Common Council shall have the power, with the concurrence of the Board of Park Commissioners, at any time before any of the parties assessed with*245 benefits shall have paid the amount so assessed, to repeal the ordinance ordering the proposed improvement, if such repeal be deemed for the best interests of the city; and in such event the judgment for compensation and benefits shall be void.”
That the city, in view of this charcer provision, could not have claimed the benefit of any portion of the prior proceeding, or of any question determined therein after it had repudiated and abandoned such proceeding by the repeal or the ordinance upon which the proceeding was predicated, needs only to be mentioned to establish the correctness of the proposition.'
If, then, the city could not claim the benefit of any and every question determined in the prior proceeding after the repeal of the ordinance upon which that proceeding was predicated, the defendants, for like reasons, ought also to be denied that right. A contrary proposition would violate every principle upon which estoppel is founded.
If the repeal of the ordinances under which the prior proceeding was instituted rendered void all that was done thereunder; if it released the property sought to be taken as well as the property assessed with benefits to pay therefor, on what principle can it be contended that the city, in an independent proceeding, brought under a new and independent ordinance, is bound, at the option of one whose property is sought to be condemned in said second proceeding, by the value of said property assessed in a prior abandoned proceeding?
If the judgment upon the question of the value of defendants ’ property in the prior proceeding is void, and such is its effect by the terms of the charter under which both this and the prior proceedings were authorized and instituted, upon what theory or under the application of what principle of law did appellants ask or expect the trial court to take cognizance of a verdict and judgment rendered in the original proceeding, and
If we will suppose that appellants’ property, the-value of which had been fixed by the verdict of the jury in the prior proceeding begun by the city in 1896 to-condemn same, had doubled or quadrupled in value since that time (a condition not unusual in the prosperous and growing cities of our country), what court would have tolerated for an instant an effort by the city to have it appropriated for public use, under a new and independent proceeding brought in 1899' at the-value fixed for its appropriation in 1896, under proceedings voluntarily abandoned by the repeal of the ordinance authorizing the proceeding ? Or if we will again 'suppose that since the value of defendants’ property was determined in 1896 under proceedings afterward abandoned by the city, they had placed thereon valuable improvements, would that additional value be ignored under a new proceeding begun in 1899 to condemn the same property, for a like contemplated use. Most certainly not, and yet such would be the result, i f the position of the appellant in this case is correct, that the award of the jury in the prior abandoned proceeding by the city should be made the valuation of defendants ’ property in the present inquest. As the valuation of defendants’ property by the jury in the prior-proceeding under the circumstances given, could not be made availing to the city in a subsequent proceeding begun to condemn the same property and to determine defendants’ damage for its appropriation, for a like reason it must be unavailing to defendants now that their property, judging from the great discrepancy between the previous and subsequent valuation made thereof, has undergone a decline, a condition also quite
But if we should ignore the effect of the repealing ordinances passed b3r the city, April 5, 1899, and the dismissal of the first proceeding in obedience to its terms, and treat this as in some way but a continuance of the case under the original proceeding, and consider the case simply as if it had been reversed by this court upon the stipulation and agreement between the city and the appellants in that proceeding, these appellants would still be in no better attitude to make the contention that a new verdict by a jury in a subsequent hearing would not be necessary before their lands could be appropriated by the city for public usé, or that the prior award was the proper basis for the subsequent valuation to be made for the property to be taken; nor could it make any difference in considering the effect of the assessment made by the first jury, that the appellants here did not appeal from the judgment on said first assessment, or that they were satisfied with the appraisement then made by the jury called to determine the question of the value of their property proposed to be taken.
An appeal was taken by two of the parlies interested in the result of that proceeding, and these appel - lants, as defendants therein, though not appealing, are equally bound by the result of that appeal as though they had joined therein. This court has held in cases of this character that, upon a reversal, the whole verdict and judgment is set aside, even though one person only prosecuted his or her appeal and the assessment of damages was made to each individual defendant as his or her interest in the property to be taken was made to appear, and that a new trial must be had as to all defendants upon the issues of the value of their property sought to be condemned.
So, whether we consider the case now before us
We have examined all the authorities cited by appellants, but in none do we find where a rule has been announced, or where a court of last resort has held, that a jury impaneled in a new or subsequent condemnation proceeding by a municipality to assess damages and . benefits, was bound by or must adopt the verdict or award made by a jury in a prior proceeding that had been prosecuted for the same purpose, and in one case cited (City of St. Joseph v. Hamilton, 43 Mo. 282" court="Mo." date_filed="1869-02-15" href="https://app.midpage.ai/document/city-of-st-joseph-v-hamilton-8002501?utm_source=webapp" opinion_id="8002501">43 Mo. 282, from our own State), where this question was directly presented, the attempted practice was condemned.
In that case, which was a proceeding begun originally before the mayor of .the city of St. Joseph to condemn a strip of lands owned by certain of its citizens, for the purpose óf widening one of the streets of the city by order of its Council under its charter power, it seems that when the jury was sworn, the defendants sought, as the appellants did in this case, to have the damages to be awarded them determined by á prior award that had been made in their behalf in a previous condemnation proceeding by the city against them for the same purpose. This was denied to them in the pro
“The first question that will be considered is the action of the oircuit court in entering up judgment for the amount assessed by the first jury. How it was presented in such a shape that the court could take jurisdiction of it I can not comprehend. It was a distinct proceeding of itself. The second proceeding was in the nature of a new suit, commenced on new process, and was not a continuation of the former. . . If the second assessment in this case was a nullity,' that was good ground for quashing it, but it could not authorize the court to render a. judgment on a matter not before it.”
Although this case has since been overruled upon the main proposition discussed therein, and upon which the ease was made to turn, to-wit, that the city by the first proceeding against defendants’ property was bound absolutely from beginning the second proceeding in which the appeal was taken, upon the first question considered by the court, which was as to the court’s want of authority to take cognizance of the assessment and verdict in the first or prior proceeding to condemn, and make a jury impaneled in the new or second proceeding for the same purpose, adopt arbitrarily the assessment or verdict of the jury in the first proceeding, no question has ever been made, and the proposition then announced is still the law.
The next case from this State cited by appellants,
This was an action by plaintiff, a citizen of St. Charles, to recover against the city the value of certain real estate which the city had taken and appropriated for street purposes. To this action, the city answered, claiming the property under condemnation proceedings previously begun to appropriate same to widen one of its streets, and averred its readiness to pay to plaintiff the amount so awarded him in that proceeding, and tendered the amount into court and prayed judgment. To this answer plaintiff replied denying the legality and regularity of the condemnation proceeding under which the city claimed the property taken, and.also set up the fact that a' prior proceeding to the one under which the city claimed the property had been begun by the city to condemn the same identical property, and that the amount of his damages for the property to be taken as then made fixed its value at $1,000 and pleaded that the prior condemnation proceeding was a bar to the commencement of the second proceeding. On motion this last part of plaintiff’s reply was stricken out. At the trial plaintiff’s contention seems to have been that he was entitled to damages in the sum of $1,000, the amount of the award under the first or prior condemnation proceeding begun by the city against his-property, while that of the city was that plaintiff’s damages should be limited to $450, the amount of the award at the second or subsequent condemnation proceeding-begun by it for the purpose of condemning defendant’s property after the abandonment of the first proceeding. In that ease no occasion existed for a consideration of the proposition involved in the prayer of defendants’ answer, that was stricken out in this case; nor was there said in that opinion in disposing of the issues involved (or in the dicta indulged in, in which it abounds) anything giving sanction to the contention made by the appellant in this case, that the verdict of the jury in
“But we are of the opinion that this value was fixed by the first award; that this is binding upon the city, except in the event of the abandonment of the design of widening the street; and that it is not competent for the city, adhering to its original purpose to widen the street, to have recourse, tentatively, to a number of juries, to reject such findings as it does not think eligible, and to -fasten upon and hold the citizen to the first one which places an estimate in its eyes sufficiently low upon the property the condemnation of which is sought. . . . We can not perceive what possible advantage can arise from the constitutional declaration that private property shall not be taken for public use without just compensation, if the State or any of its deputies, exercising the right of eminent domain, may cause as many inquests as it pleases of the value of the property to be condemned, and set aside as many of them as it sees fit, until one is found sufficiently small to suit its notions of a just compensation, and then to declare it to be so. Of course, this-permits one of the parties to a controversy to determine a judicial question*252 in Ms own favor, and compel the other party to submit to the decision.”
Under the issue tendered by the pleadings in that case, and as the parties thereto sought to have the case tried, the question of the amount of damages for which the plaintiff was suing was made to turn upon the validity or invalidity of proceedings in which the measure of plaintiff’s damages for the property taken by the city had been previously awarded, the city tendering the amount of one award made, the plaintiff asking that Ms damages be determined at the amount fixed in a prior award made in the same character of proceeding. No question of the right to have a verdict, or the judgment based thereon, in one proceeding, imposed upon a jury impaneled in another proceeding of the same character, was contemplated, considered or discussed in that case.
Not only does that case not support appellants’ contention that the verdict or award in the prior proceeding against appellants’ property should determine the amount of the judgment in the present proceeding, but the proposition of law which the opinion does assert, and now urged upon our consideration by appellants, “that a municipality in this State should be denied the right to pronounce a particular property sought to be condemned necessary or unnecessary according to the terms at which it may be acquired, ’ ’ has been expressly disapproved by this court. [Simpson v. Kansas City, 111 Mo. 243.]
It will be sufficient, without further comment upon the numerous authorities cited by appellant, to say, that none go further than to hold that where there is a valid, subsisting and final judgment in condemnation proceedings, unappealed from, not vacated or set aside, such former proceeding or judgment therein may be interposed to bar the prosecution of a new proceeding for the condemnation of the same property for the same purpose by the same corporation.. None have gone to
Seeing no error in the action of the trial court in striking out appellants’ answer filed, and nothing appearing to indicate that appellants have been aggrieved by the award made to them at the present inquest, the judgment of the circuit court will be affirmed.