128 Mo. 272 | Mo. | 1895
The Realty Investment Company, one of the appellants, has dismissed its appeal in'this court.
These proceedings were commenced before the mayor of Kansas City, under ordinance 4972 of that city, approved April 7, 1893, to condemn, for the purpose of widening said street and establishing a boulevard, a strip of land ten feet wide on each side of Independence avenue from Woodland avenue on the west to Gladstone avenue on the east, excepting a short distance on the south side of the street; also a strip of land fifteen feet in width on each side of Gladstone avenue from Independence avenue to St. John avenue; thence a tract or strip of land through the Vineyard property described by straight lines and curves running northeastwardly to the west end of Scarritt avenue; and from that point east it took a strip of land fifteen feet wide on each side of Scarritt avenue to the eastern limits of the city.
At the same time, and as a part of the same ordinance, the common council determined and prescribed a benefit district, within which private property should be deemed benefited by the proposed improvement, which extended back one hundred and fifty feet from the line of the proposed boulevard.
Erom the verdict in the mayor’s court the appellants appealed to the circuit court of Jackson county, at Kansas City. On the ninth of October, 1893, a transcript of the proceedings before the mayor was filed in the office of the circuit court, certified by the city clerk. ■ Various changes of venue were asked for and, finally, upon the disqualification of Judge Henry,
When the cause came on for trial in the circuit court, and on the first day of November, 1893, the defendant, Alice M. Smart and D. 0. Smart, filed a motion to dismiss for the following, among other, reasons, to wit:
“First. Because the record fails to show that the city engineer delivered to the mayor a statement by map, plat, or otherwise, containing a description of the property to be taken with the names of the owners thereof.
“Second. Because the record fails to show that the board of park and boulevard commissioners selected the route for the proposed boulevard.
Third. Because the ordinance under which the proceedings were had was unlawful and irregular, in that it prejudged and predetermined that the city was not to be benefited beyond the sum of $500.”
Thereupon, the city filed a motion asking leave to amend the record by filing, in addition to the original transcript already filed, a certain statement alleged to be a part of the record showing the delivery to the mayor of a statement by map or plat containing a description of the property and the names of the owners; and also asking leave to file a certified copy of the resolution of the board of park and boulevard commissioners, together with the approval of the board of public works. -The above motion coming on to be heard on the twentieth day of November, 1893, evidence was submitted which showed the following facts:
“First. The original transcript filed with the circuit clerk did not contain a copy of the resolution of the board of park and boulevard commissioners selecting the route for the proposed boulevard, nor the-approval thereof by the board of public works; second,*280 the original transcript contained no reference whatever to any such resolution or to any such approval thereof; third, the evidence was uncóntradicted that the resolution of the board of park and boulevard commissioners selecting the route, with the approval thereof by the board of public works, was not presented to, nor received by, the lower house of the common council at the time ordinance number 4972 was passed, nor at any time previous thereto; fourth, such resolution and approval were not filed with the mayor, nor offered in evidence, nor used in any way in the mayor’s court, while these proceeding were pending therein; fifth, the evidence showed that there was no statement, recital or reference in the original transcript filed in the circuit court showing that the city engineer of the board of public works, or one of his assistants, had made out and delivered to the mayor a statement by plat, map or otherwise, containing a description of the private property to be taken and the names of the owners thereof.
To sustain the motion to amend, there was offered in evidence by the city a book labeled “Condemnation Record, No. 24.” On page 115 of said book was a statement that a map containing a description of the property and the names of the owners thereof had been delivered to the mayor. This record entry was written by a deputy city clerk November 20, 1893, on which testimony was heard on the motion to amend. The Condemnation Record number 24 contained a copy of the resolution of the park board, but the evidence shows that it had been written therein since the fifteenth day of November, 1893, after the motion to dismiss had been filed by appellants, and over a month after the original transcript was filed with the circuit clerk.
The evidence showed that the map which accompanied the original transcript filed with the clerk of the
It was also proved that tbe map or plat furnished by tbe engineer was made and delivered to tbe mayor prior to tbe sending out of tbe notices by tbe city clerk summoning tbe property owners into court. This map was introduced in evidence before tbe mayor, and it or a copy of it accompanied the transcript of tbe proceedings in tbe mayor’s court, which was certified by tbe city clerk to tbe circuit clerk. There was no recital in the transcript filed with tbe circuit clerk showing tbe time when this map was delivered to tbe mayor, and tbe map itself bad no file marks or receipt óf tbe mayor written upon it.
To all of this evidence these defendants objected on tbe ground that tbe record should speak for itself, and that it could not be eked out by parol evidence, and exceptions were saved to tbe overruling of these objections by tbe court.
Tbe court sustained tbe plaintiff’s motion to amend tbe transcript by adding thereto a certified copy of tbe record of the proceedings of tbe park and boulevard commissioners, to which ruling these defendants
On the twenty-first of November, 1893, defendants filed additional objections to further proceedings in this cause because on the face of the record the court had no jurisdiction; because the record failed to show that the ordinance was passed by the common council upon the recommendation of the park board and upon the approval of the board of public works, or that any such recommendation or approval was ever made; because said ordinance did not contain a proper description of the property to be taken; because the ordinance did not locate any property to be taken in Kansas City; because the record did not show any attempt upon the part of the city to agree with the owners of the property proposed to be taken as to the purchase price thereof. These objections were also overruled by the court and exceptions saved by these defendants.
Thereafter, on the tenth day of February, 1894, these defendants, -who are also appellants here, made demand upon the court by motion for a common law jury to try the case. The record showed that the following, among other incorporated companies, were interested against the exercise of the right of eminent domain in these proceedings: New York Life Insurance Company; Connecticut Mutual Life Insurance Company; Mercantile Loan and Trust Company; Provident Life and Trust Company; Lombard Investment Company;'New England Loan and Trust Company; Realty Investment Company. This demand was refused by the court and appellants excepted.
The court then proceeded to impanel a jury of six freeholders. One of the members of this jury, Mr,
The ordinance, the resolution of the board of park and boulevard commissioners indorsed with the approval thereof, signed by the president and secretary of the board of public works, a map containing a correct description of all the property to be condemned and all of the benefit district, with the names of all the owners thereon, were offered and read in evidence in the circuit court. Many witnesses testified orally as to the damages and benefits that would ensue or accrue to the various owners abutting on said boulevard. There was evidence to show that the benefits to the property owners would be direct and immediate and would enhance the market value of the property. On the other hand there was evidence tending to show that the taking of this strip for the purpose of widening this street would seriously damáge the property of appellants without a corresponding amount of local benefit.
There was also a strong conflict as to the benefit that would result to the city and public generally from the establishment of the boulevard. On the part of the city the testimony of a number of witnesses was to the effect that whatever benefit would come to the city would not be immediate but would follow later‘as the
The value of the land actually taken, as found by the jury, was $100,000, and the damaged property not taken $41,000. To pay these sums, or $141,000, an assessment was made against the property in the benefit district, excepting the one dollar assessed against the city. Twenty-three thousand,' five hundred dollars was assessed as benefits against the property of the appellants, Alice M. Smart and D. O. Smart, and they were allowed as damages about $22,900, their benefits exceeding their damages about $600.
During the hearing the defendants offered to show by a witness that the benefit district was in his opinion unreasonable, and, upon objection, the court refused to permit the witness to state hL opinion, and an exception was saved. Various objections were made to the verdict on account of inaccuracies in description.
The court gave written instructions to the jury. No objections were taken to the instructions by any of the appellants except the Tootle heirs, and their exceptions will be considered in the further consideration of the case.
I. Both orally and in their brief the counsel for Mrs. Alice M. andD. O. Smart assert a want of jurisdiction in the circuit court to-sustain these proceedings. If they are correct, all further inquiry is needless. They assume that the common council of Kansas City had no authority to proceed to the establishment of the boulevard in question until the board of park and
The charter of Kansas City was adopted and became operative May 9, 1889, pursuant to the power conferred by section 16, article 9, of the constitution of Missouri upon cities having a population of more than one hundred thousand inhabitants. By clause 5, section 1, of article 3 of the charter “the mayor and common council are given exclusive control and power over the streets, sidewalks, alleys, landings, public grounds and highways of the city; to establish, open, alter, widen, extend, grade, pave, repave, block, reblock, sprinkle or otherwise improve, clean and keep in repair the same,” etc. Article 7 provides the method of condemning private property for the purpose of “establishing, opening, widening, extending or altering any boulevard, street, avenue, alley,” etc.
Under these provisions of the charter there can be no doubt of the power of the mayor and common council to establish the boulevard in question nor of their power to widen and extend any existing street of said city to accomplish that end. The contention of defendants Smart and wife is based on the amendment to the charter adopted February 7, 1892.
Section 3 of article 10, of the amendments to the charter of Kansas City, adopted at that date reads as follows:
*286 “It shall be the duty of the board of park and boulevard commissioners to select, or to select and purchase as herein provided, real estate for at least one park in every park district, and to select routes and streets for the purpose of establishing and maintaining boulevards in said city, and such board shall recommend to the common council its action upon such selection for either parks or boulevards, and it shall be the duty of the common council to forthwith act upon such suggestion and so proceed to the establishment of a park or boulevard as selected by said board; provided that such selection for either park or boulevard be approved by the board of public' works; and, provided, further, that no boulevard shall be of an established width of less than seventy-five feet, exclusive of the right of way of any street railway thereon.”
Article 10 of the chartei as amended was adopted in lieu of article 10 of the original charter. Article 10 of the charter was adopted when the charter itself, containing articles 3 and 7, supra, was adopted. Article 10, as amended, did not repeal the express grant of power in articles 3 and 7. There are no express words of repeal, and there are no provisions in the amendment which make it impossible for both to stand. There is nothing in the language of the said amendment which requires that the resolution of the board of park and boulevard commissioners should be a condition precedent to an ordinance to widen a street into a boulevard. Section 3 denominates the proceedings of this board as a suggestion. Clearly the naked power to suggest in advance of the action of the common council was never intended to abrogate a power so well defined and clearly expressed, already vested in the common council. The common council was still left free to exercise the power conferred upon it without a suggestion from the board. There is no
The power of the common council was in no sense dependent upon the action of the board of park and boulevard commissioners, and it was not essential either that the board should have passed the resolution or that it should have been approved by the board of public works, or transmitted to the council, nor was it necessary to recite all these steps in the ordinance itself. The circuit court, therefore, committed no error in overruling the motions to dismiss and the objections to any evidence based on the same grounds.
II. It is also urged that the record nowhere discloses an effort upon the part of the city to acquire the additional strips by amicable agreement. Counsel cite in support of this contention a number of decisions based upon statutes which grant the power to condemn only in case no agreement could be made with the owner of the lands. Ells v. Railroad, 51 Mo. 200; Railroad v. Campbell, 62 Mo. 585.
But the charter of Kansas City contains no such restriction upon the power of the common council. By section 1, article 7, it is provided that, whenever the city shall provide by ordinance for establishing a boulevard and it becomes necessary to take or damage private property, just compensation ¡shall be paid to the owner, which shall be ascertained and assessed by a jury of six disinterested freeholders of the city by proceedings prescribed by ordinance as in the charter provided. No authority is vested in any officer or agency of the city to agree with the owner, and no fund is made applicable in case an agreement can be effected. Under such circumstances an agreement
The only provision in the charter or' amendment with reference to an agreement between the city or the board of park and boulevard commissioners with the owner or owners of the property to be taken, is as follows: “If the board of park and boulevard commissioners can agree with the owner or owners of any tract or parcel of land selected for any park or boulevard as to the purchase price thereof * * * they may further agree to pay for the same in special tax bills * * Section 6, article 10, Charter Amendments.
The'powerto consummate the agreement is by payment in special tax bills. The proceedings under review look to compensation as required by the constitution. The power to condemn a boulevard only in case of disagreement is not to be found in the charter, but is thus limited in the acquisition of a parle. Section 7, article 10, makes the distinction apparent. It reads:
“In case the board of park and boulevard commissioners can not agree with the owner or owners of any tract or parcel of real estate selected by them for a parle, the said board of park and boulevard commissioners is authorized to institute proceedings in the name of the city to the use of the park district in which the tract or parcel of real estate is situated for the condemnation of the same * * *.”•
The difference between the two sections, the one relating to boulevards and the other to parks, is very marked. Under section 7, an effort to agree with the owner of the land to be taken for a parle seems to be necessary before a resort can be had to proceedings in invitum, whereas nowhere in the charter is to be found language indicating that the common council can condemn land to establish or widen a street only in ease it can not agree with the owner. Section 6 of article 10
III. Again, it is insisted that the failure of the may- or’s record to recite the filing of the map is fatal. By section 2, article 7, of the charter, the city engineer of the board of public works, or one of his assistants, is required to make out and deliver to the mayor or the speaker of the lower house, as the case may be, a statement, by plat, map, or otherwise, containing a correct description of the several lots or parcels of private property, which any ordinance shall require to be taken or damaged, together with a correct description of the several lots or parcels deemed benefited and to be assessed to pay compensation, and containing also the names of the owners or claimants of said several tracts or parcels. It stands confessed that the engineer did prepare the map as required, and did deliver it to the mayor, and it was filed in the office of the city clerk, and when this was done it became a part of the record, without any file marks.
It is clear that this map was not to be made until after the ordinance was adopted. There is no requirement that a record should be made of its filing. It was evidently intended to furnish a list of the owners whereby they might be notified and to aid the mayor’s court and the circuit court in their hearing of the cause. It was simply a step in a proceeding of which the may- or had jurisdiction. The evidence was to be furnished the mayor to enable him to perform his duties intelligently and he was to be satisfied by judicial inquiry that all the owners were notified and that a correct description of the property to be condemned was before him. His jurisdiction did not depend upon the filing or the correctness of the map.
It was ruled in Leonard v. Sparks, 117 Mo. 103, that the mayor under this charter is invested with the
IY. The juror Butler was not challenged for cause. The omnibus objection to the whole panel because they were not qualified was entirely too indefinite to entitle it to a review by this court. The grounds of challenge to a juror must be stated when he is offered and tested on his voir dire. The trial court is entitled to know the reason for the challenge. State v. Brownfield, 83 Mo. 453, 454; Thompson & Merriam on Juries, sec. 253 and cases cited; 1 Thompson on Trials, sec. 98.
Y. All the appellants unite in assigning as error the refusal of the circuit court to award them a jury of twelve men, but they differ greatly in the reasoning by which they attempt to establish their common claim. Counsel for Yineyard asserts he was entitled to a jury because the city was a corporation and incorporated companies were defendants. Counsel for the Tootle heirs insist that a proper construction of the constitution will entitle every party to a common law jury of twelve in all proceedings where the right of eminent domain is to be exercised or enforced; whereas Mrs. Alice M. Smart and D. 0. Smart base their demand on the ground simply that several incorporated companies were defendants. They all concede that their’ several claims must rest upon section 4 of article 12 of the constitution of this state, which ordains that ‘The right-of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of said right of eminent domain, any incorporated company shall be
Prior to the adoption of the constitution of 1875 -the right of jury trial was not secured by the constitution or laws of this state in proceedings for the condemnation of property in the exercise of eminent •domain. It was so held in Louisiana, etc., Road Co. v. Pickett, 25 Mo. 535, and the right to demand a jury of twelve has never been recognized by this court since the adoption of the present constitution, save in those •cases which fall within section 4, article 12, just quoted. City of Kansas v. Hill, 80 Mo. 523; Lewis on Eminent Domain, sec. 311.
All the claims of the several appellants to a jury -of twelve by virtue of section 4, artle 12, of the constitution have' been considered by Judge Maceablane in the cause of Kansas City v. Vineyard, ante, p. 75. I am entirely satisfied both with his reasoning and the ■conclusions reached and hence deem it unnecessary to repeat what he has said or attempt a more satisfactory exposition, but merely state his1 conclusions without ■elaboration. He most clearly demonstrates that a municipal corporation is not an incorporated company within the meaning of the constitution. Heller v. Stremmel, 52 Mo. 312; Cloud v. Peirce City, 86 Mo. 357; Mayor v. Ray, 19 Wall. 475; 1 Dillon on Municipal Corp., sec. 20; Philadelphia v. Fox, 64 Pa. St. 180. It results, then, that the mere fact that the city is a party plaintiff does not entitle any defendant to a jury of twelve.
In this case, as in Kansas City v. Vineyard, supra, no incorporated company is now before this court appealing, so that if either of the appellants is entitled to a jury it must result from the fact that “incorporated companies” owned some of the lots, or parcels of land which the city sought to condemn, and the
The claim here is that the proceeding is an entirety and, therefore, any party to a proceeding in which an incorporated company is interested for or against the right may demand a jury, although the incorporated company may waive its right. The right of trial' by jury is guaranteed only in trials for compensation when “any incorporated company shall be interested for or against the exercise of said right.” Railroad v. Railroad, 118 Mo. 599. Now, it is apparent no “incorporated company” is interested for the exercise of the right in this case. The incorporated companies were interested alone against the right, and the city or the incorporated companies either could have demanded a jury of twelve. Each waived it. No person is interested in the compensation to be awarded these incorporated companies, except the city and the companies.
As to all other parties the constitution specifically prescribes that their compensation shall be ascertained by “a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed bylaw.” Sec. 21, art. 2, Const, of Mo.
The foregoing conclusion we think is absolutely correct if we are right that as to compensation each property owner bears a distinct relation to the condemning party, but we recur now to the claim that this proceeding is an entirety, so completely so, that any property owner, it matters not how small or great his interest, nor that he has been' awarded full and adequate compensation by the commissioners, may
This claim of entirety is not new in this class of cases. It was met and confuted in St. Louis v. Lanigan, 97 Mo. 175. In that case it was urged that the proceedings were erroneous because the husband of one non-appealing defendant was not made a party and because another who was a party was not served, but this court disposed of the complaint by holding that the appellant therein “had no right to the reversal of a judgment for errors which did not affect him,” citing Mead v. Brown, 65 Mo. 552, and pointing out that “our statute forbids this court to ‘reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiffin error, and materially affecting the merits of the action.’ ” See section 2303, R. S. 1889.
Each property owner in a proceeding like this is independent of the others as to the damage or benefit to his property and there is no such common interest as will justify a court of equity entertaining a bill to prevent a multiplicity of suits. Such an improvement may greatly benefit one abutter and as signally damage his neighbor. City of Kansas v. Hill, 80 Mo. loc. cit. 538.
It seems to us that, construing all the provisions of the constitution together, it is very plain that the constitution guarantees “the historical jury” of twelve only for or against incorporated companies in proceedings to exercise eminent domain, and this was to guard against prejudice in favor of or against private corporations exercising that right or affected by it and this constituted an exception. As to all other persons the board of commissioners, not less than three, was
VI. Another ground of complaint is that the circuit court erred in excluding evidence tending to show that the benefit district, defined and established by the-ordinance, was unreasonably small. The power to-determine what shall be the tax district for the purpose óf a street improvement of this nature is a legislative-power vested in the common council. In no sense is it-a question for the jury. The courts uniformly hold that they have no right to interfere with this legislative-discretion. Cooley on Taxation [2 Ed.], ch. 5, p. 149; People ex rel. v. Brooklyn, 4 N. Y. 419; Kansas City v. Morton, 117 Mo. 446; Kansas City Grading Co. v. Holden, 107 Mo. 305; St. Louis to use v. Oeters, 36 Mo. 456; Keith v. Bingham, 100 Mo. 300.
The common council of Kansas City has the power and must'define the limits within which private property shall be deemed benefited by the widening of a. street, subject to the power of the courts to declare the-ordinance void if it appears unreasonable and arbitrary; and the benefit district established by this ordinance is-hot so unreasonable that this court or the circuit court could declare it void. With this question the jury has nothing to do. The council, however, can not assess-the benefit to any individual lot or tract within the tax district — that is the function of the board of commissioners or jury. Kansas City v. Baird, 98 Mo. 215.
VII. The objection is made that, because the commissioners only assessed one dollar against the city at. large, therefore there was no such public use as to jus
VIII. The Tootle heirs challenge the instructions of the court. They have confined their criticisms in this court to two of the instructions only, viz., the one numbered 2 given at the instance of respondent and number 10 asked by John E. Owens.
The objections urged against instruction number 2 are that it directed the jury to ascertain the whole amount of the damages and then assess against the city the amount of benefit to the city and public generally, and the balance of such damages they should assess against the property in the benefit district.
This instruction is in exact conformity to section 3, article 7, of the charter. The' power was given by the constitution to the people of Kansas City to frame a charter containing the power in the common council to prescribe the limits within which private property shall be deemed benefited by the proposed improvement, and the courts have no power to enlarge or contract these limits.
As already said, the courts having general jurisdiction may adjudge such an ordinance void because unreasonable and arbitrary in a proper proceeding. Kansas City v. Morton, 117 Mo. 446; Copeland v. St. Joseph, 126 Mo. 417. But the legislative authority having determined that the property within the benefit district should pay all the compensation for the property taken or damaged, not assessed against the city
The question of unreasonableness does not properly arise upon this record, because the jury has found the property in that district was benefited $140,186.
There was no error in the tenth instruction in regard to the damages to Owens’ property. The court instructed generally as to the manner of assessing benefits in the second, thirteenth and fifteenth instructions.
IX. Counsel for the different appellants attack the verdict of the jury as unjust and indicating a wanton disregard of the rights of their claims. Great stress is laid upon the fact that the benefit to the city was assessed at one dollar. This leaves out of view that the jury has simply said .that their property is worth as much now as it was before the streets were widened. They doubtless considered that after the street was improved the ordinances of the city required the strip to be kept up and maintained at the expense of the public and the .park district. For weeks the jury heard all the testimony and went upon the ground and as freeholders viewed and weighed the whole case, under correct instructions from the court, and this court as an appellate tribunal, under the circumstances, has no right to interfere with their finding.
In St. Louis v. Lanigan, 97 Mo. 175, under similar circumstances this court, through Shebwood, J., said: “It has been established by a long line of decisions, so numerous as not to require their citation, that in law cases, aside from those where mistake, fraud, prejudice or passion manifest themselves» in the. rendition of a verdict, that this court will not interfere by weighing the evidence on which the verdict is founded. Obviously, the same rule must obtain in all other law
“Besides, in cases of the sort now under consideration, it is to be observed that the judgment of the commissioners is not formed exclusively upon evidence •submitted to them; they are required to view the premises, and they have the advantage of an actual personal inspection; and they are to be guided to some extent by that. Selected because of their capacity and fitness for the position they are called upon to fill; required to be disinterested; sworn to a faithful discharge of' the -duties imposed upon them, their report should not be set aside but upon satisfactory grounds; the testimony ■of witnesses as to value, whether heard before the commissioners, or subsequently, by the court on exceptions filed, though entitled to due consideration, is not controlling ; and, ‘unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal, there is nothing for review, and their report should not be disturbed.’”' Kansas City v. Butterfield, 89 Mo. 646; Kansas City v. Baird, 98 Mo. 215; Garland v. Smith, 127 Mo. 567.
X. The appellants also point out various defects and irregularities in the verdict. No party in whose property these alleged, defective descriptions exist has made complaint, except Mr. and Mrs. Smart. It is sufficient to say they can not avail 'themselves of any supposed injury to other parties not appealing. The assignment as to lot 117, D. 0. Smart’s addition, is evidently based upon misapprehension of the record. The error is in appellants’ abstract.
The mistake in the description affecting lot 118, D. O. Smart’s addition, refers to a five-foot curve.- When
The judgment will not be reversed on account of' the failure to allow Jesse N. Johnson compensation. He was duly notified that his land within the limits of' the street would be taken, and when and where the-hearing would be had to fix its value. The judgment-of the court condemns it and he is not complaining.
It is not at all remarkable that a proceeding affecting four hundred different tracts should have developed some inaccuracies. It is suggestive of very careful work that only four are complaining.
XI. Finally, it is claimed the proceedings must-fall because the record nowhere discloses the property sought to be condemned is in the state of Missouri or Jaekson county. As to this it will suffice to say that the charter of Kansas City is a public act, of which we are required to take notice. By section 2, article 1, of' the charter, it is provided that the corporate limits of' Kansas City shall include all that district of country fin the county of Jackson, state of Missouri, setting forth the boundaries by the surveys of the United States government, the state line and the Missouri river. The ordinance is the act of this incorporated city, and the description of the streets upon which this improvement was proposed clearly brings it within the corporate limits of Kansas City.
The record is devoid of material errors, and the judgment of the circuit court is affirmed.
