22 Mo. App. 409 | Mo. Ct. App. | 1886
The law is against .plaintiff’s ease, for the reason that the facts are against Mm. if the city had
But has the defendant done any of these things % It has only passed an ordinance preliminary to the taking • of the property, this and nothing more. Conceding the assistant city engineer to have assumed to be acting in his official capacity when he notified plaintiff, it counts for nothing in this case. The ordinance had not yet been passed, and I know of no right in the engineer to notify property holders of what ordinances will be passed by the council. But this alleged notice was a mere conversation, in which the engineer gave expression to his opinion of what the action of the council would be.
The plaintiff has been the active agent in this difficulty, the defendant has been passive. The plaintiff has ' set his property back and has thrown the four feet of ground into the sidewalk area. The city has not demanded it of him, and has - taken no part with him in it.
“A long series of decisions,” says Sapallo, J., “has established that in these street cases the corporation may be permitted to discontinue the proceedings at any time before rights resulting therefrom have become vested in the property owners. They further hold, differing, in this respect, from the English cases, that no such rights are vested until the report of the commissioners is finally confirmed and there is a final award, in the nature of a judgment, in favor of the property owners for their compensation.” In re Washington Park, 56 N. Y, 145, 153. And the rule is thus forcibly stated by Mr. Justice Schofield: ££ The rights of the parties are correlative and have a reciprocal relation, the existence of the one depending on the existence of the other. When the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation.” Chicago v. Barbian, 80 Ill. 482, 487. “The right to the compensation is complete when the right of the public is complete.” Harrington v. Commissioners, 22 Pick. 268.
The principles announced and maintained by the preceding quotations, are also supported by the decisions of the courts of this state. “I have no doubt,” said Wagner, J., “that the city may dismiss its proceedings at any time before final judgment, * * * and then the only liability that would be incurred would be the
I am of the opinion the plaintiff has no cause of action, and the judgment, with the concurrence of the other judges, will be reversed.