115 S.W. 446 (Mo. 1909), Brunn v. Kansas City

Citation115 S.W. 446, 216 Mo. 108
Opinion JudgeLAMM, P. J.
Party NameCHARLES A. BRUNN and FRANKLIN J. DONNELL et al., Appellants, v. KANSAS CITY
AttorneyFrank F. Brumback and E. P. Garnett for appellants. Edwin C. Meservey and Francis M. Hayward for respondent.
Case DateJanuary 14, 1909
CourtSupreme Court of Missouri

Page 446

115 S.W. 446 (Mo. 1909)

216 Mo. 108

CHARLES A. BRUNN and FRANKLIN J. DONNELL et al., Appellants,

v.

KANSAS CITY

Supreme Court of Missouri, First Division

January 14, 1909

Appeal from Cass Circuit Court. -- Hon. N. M. Bradley, Judge.

Affirmed.

Frank F. Brumback and E. P. Garnett for appellants.

The allowance of interest on the award, from its date, was necessary to complete plaintiffs' just compensation for the property taken. The jury found that they were entitled to that amount on that date; when the compensation was withheld for four years, there should have been added additional compensation, which is ascertained by calculating interest on the award from its date. Otherwise, the property-owner does not receive the just compensation for the property taken as provided by the organic law of the land. Any charter provision which limits any part of the just compensation is void. Lewis on Eminent Domain, sec. 499; Plum v. Kansas City, 101 Mo. 525; Martin v. St. Louis, 139 Mo. 246; In re Paseo, 78 Mo.App. 518; Hampton v. Kansas City, 74 Mo.App. 129; Warren v. Railroad, 41 Minn. 424; Melter v. Railroad, 37 N. J. L. 222; West v. Railroad, 56 Wis. 318.

Edwin C. Meservey and Francis M. Hayward for respondent.

The provision of the charter of Kansas City, article 10, section 18, in the case of taking land for public parks, is valid and not in conflict either with the Constitution or the statutes of the State. 15 Cyc. 930; Martin v. St. Louis, 139 Mo. 246; Phillips v. Pease, 39 Cal. 582; Chicago v. Wheeler, 25 Ill. 496; Fink v. Newark, 40 N. J. L. 533; Hamersley v. New York, 56 N.Y. 533; Erie Co. Com. v. Buffalo, 63 Hun 565; In re Dep. of Pub. Parks, 53 Hun 280; Pegler v. Hyde Park, 176 Mass. 101; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Kansas City Charter, sec. 19, art. 10.

OPINION

Page 447

[216 Mo. 110] LAMM, P. J.

This is a suit to recover interest on an award (or judgment) in a condemnation suit. Attending to the latter: In establishing its Penn Valley Park, Kansas City commenced an omnibus suit under article 10 of its charter, regulating its exercise of the right of eminent domain, in the circuit court of Jackson county, to take the real property of divers owners and to assess against that of others benefits to pay the damages for land taken. M. S. C. Donnell with many others owned tracts within the proposed park limits, and was made a party defendant. His parcels of land were covered by conveyances in trust, but these are immaterial to any question now submitted. The issues in that proceeding were submitted to a charter jury of six freeholders who made an assessment of benefits and an award of damages -- Donnell's item being $ 28,762. (Note: Dates are material and should be kept in mind.) The award was made in the form of a verdict filed on the 24th day of April, 1897, covering 951 parcels of land. It was approved by, and judgment rendered in, said court on November 5, 1898, which judgment said nothing about interest. The cause of this delay in entering judgment is dark. Donnell elected to abide the judgment but other parties defendant appealed -- many motions for a new trial and in arrest being filed and overruled. Time was taken to settle and file a bill of exceptions. It was extended by sundry entries until October 31, 1899, when the bill was filed.

In Banc in this court on June 30, 1900, the judgment was affirmed in an opinion by Valliant, J., concurred in by a majority of his brethren (157 Mo. 450). The mandate was sent down and filed below on July 11, 1900.

[216 Mo. 111] The face amount of the award in favor of Donnell was paid by the city into court in an interpleader proceeding in which Kansas City was plaintiff and Donnell and other claimants of the fund were defendants, on April 11, 1901. A referee was appointed in that case and at the time of the trial of the case at bar the latter case was still pending, but no point is now made on its pendency, or because other parties claim or are litigating over the corpus of the fund or the interest accruing.

The present plaintiffs are the administrators of the estate of M. S. C. Donnell, deceased, and of the estate of Catherine E. Donnell -- trustee in the aforementioned trust conveyances affecting Donnell's lands. Prior to the interpleader suit, plaintiffs brought the present action to recover the interest at six per cent per annum on the original award. The cause went on change of venue to the Cass Circuit Court and was there heard by Judge Bradley.

In entering his decree the learned judge made a finding of facts covering matters heretofore stated, concluding on the law of the case as follows:

"3. The court finds that it was the duty of said defendant herein to pay into court at the time the said sum of $ 28,762 was paid, the interest on said amount from July 11, 1900, to April 11, 1901, at the rate of six per cent per annum, which amounted to $ 1,294.29, on said date.

"4. The court further finds, that as said sum of $ 1,294.29 was due and should have been paid into court on the said 11th day of April, 1901, the said sum of $ 1,294.29 should draw interest from said last named date at the rate of six per cent per annum up to the rendition of judgment herein.

"5. The court finds all other issues herein in...

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