Kansas City v. St. Louis & San Francisco Railroad Company
| Decision Date | 20 July 1910 |
| Docket Number | 1 |
| Citation | 130 S.W. 273,230 Mo. 369 |
| Parties | KANSAS CITY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Henry L. McCune, Judge.
Reversed and remanded (with directions).
Dana Cowherd & Ingraham, M. A. Lowe, Sebree, Conrad & Wendorff Johnson & Lucas and Samuel W. Sawyer for appellants.
(1) Speculation about the assessment of benefits is just as wrong as speculation as to assessment of damages. Both are condemned by the law. Hutt v. Chicago, 132 Ill. 352; Ice Co. v. City, 147 Ill. 327; Hook v Railroad, 133 Mo. 322; Isom v. Railroad, 36 Miss. 312; Railroad v. Blackshire, 10 Kas. 488; Railroad v. County, 1 Allen 331; Brown v. Railroad, 5 Gray 35; Wreckler v. City, 61 Ill. 149; Mantorville v. Stenglerland, 101 Minn. 488; McCusick v. City, 46 N.W. 769; Munkartz v. Railroad, 64 Wis. 403; Pittsburg Co. v. Rose, 74 Pa. 369; Pinkham v. Chelmsford, 109 Mass. 225; Chicago v. Donagan, 196 Ill. 522. (2) It appears undisputed in this record that the city had no plan for the viaduct, so often referred to by the city's witnesses. It had taken no step to build it. For aught that appears in the record it may never be built. Benefits must not be based on any speculation. Hook v. Railroad, 133 Mo. 322; Hutt v. Chicago, 132 Ill. 352; Ice Co. v. Chicago, 147 Ill. 327.
John G. Park, H. M. Beardsley and John G. Schaich for respondent; Jno. T. Harding of counsel.
The court properly permitted testimony concerning the condemnation proceedings and the viaduct to be built by the city. Kansas City v. Hyde, 196 Mo. 498; Chamberlain v. Cleveland, 34 Oh. St. 567; Dickson v. Racine, 65 Wis. 306; Orth v. Milwaukee, 92 Wis. 230; Lingle v. Commissioners, 222 Ill. 393.
VALLIANT, J. Fox, C. J., Gantt, Lamm and Graves, JJ., concur; Woodson, J., concurs in all except what is said concerning the case of Kansas City v. Hyde, 196 Mo. 498, as to which he dissents; Burgess, J., not sitting.
In Banc.
This is a proceeding instituted by Kansas City to assess the damages and benefits incident to the changing of the grade of Twelfth street from Broadway west to a point 270 feet west of Summit street. The proceeding arose out of the following state of facts, as we gather them from the statement of the case in the brief for the respondent.
In the western part of the city, south of the Missouri, lies a considerable tract which is called the West Bottoms. In the Bottoms are the tracts of many railroads, freight houses, and a union station, besides many business houses of various kinds. The general lay of the land is north and south. Twelfth street runs east and west, crossing the Bottoms at or about right angles; it is one of the principal thoroughfares of the city. On the east side of the Bottoms a steep bluff rises. Coming from the east on Twelfth street the traffic ends when it comes to the bluff, except traffic by street railway, which is carried on a viaduct from that point across or over the Bottoms. The viaduct was constructed by the street railway company, and is not available or suitable for any other than street railway travel. Twelfth street, from Broadway to the point mentioned, 270 feet west of Summit street, crosses four streets, Washington, Pennsylvania, Jefferson and Summit. From the brow of the bluff going east the grade of Twelfth street rises, varying from six to nine per cent, until Washington street is reached, then it falls to Broadway. The change in the grade of Twelfth street required by the city ordinance will cause a cut from sixteen to eighteen feet deep at Washington street, and the depth thence to the objective point will vary according to the natural grade, to bring the street on a level with Broadway. When the street is cut down to that grade there will still be an abrupt bluff about eight feet high.
On the other side of the Bottoms, from Santa Fe street to Liberty street, a distance of three blocks, Twelfth street is only thirty feet wide, having three shallow blocks abutting it on the north; these blocks are only thirty feet deep; they separate Twelfth street from Eleventh street, which latter street is seventy feet wide.
These three shallow blocks condemned and out of the way would, by uniting Eleventh and Twelfth streets, make a street 130 feet wide. This topographical condition has created an impediment in the way of travel to and from and across the Bottoms which the city officials have for a long time desired to remove, and to accomplish that purpose they have (we are still drawing from the statement in respondent's brief) decided on this plan, viz: The grade of Twelfth street is to be altered as above indicated, the three shallow blocks lying between Santa Fe and Liberty streets, Eleventh and Twelfth streets, are to be condemned and taken out of the way, and a viaduct is to be constructed at the city's expense, perhaps two viaducts, one to carry the heavy, the other the lighter traffic, across the Bottoms from the brow of the bluff on the east to Liberty street on the west on the grade of Twelfth street as it will be established in this proceeding.
At the trial it was shown in evidence by the city that an ordinance had been duly passed to condemn the three blocks above mentioned and proceedings were then pending to assess the damages and benefits incident to the condemning of the same, and that suit was pending in the same divisions of the circuit court as that in which this suit was being tried. And the record in this case shows that this judgment was held in the breast of the court until the other case was prosecuted to judgment, the court holding that one should not go into judgment for the city until the other also so resulted. Judgment was rendered in favor of the city in both cases, appeals taken in both, and both are now before this court and submitted together. It appears from the record in both these cases that the benefit district in one is the same as in the other. But in so far as the general plan involved the construction of the viaduct, the only evidence offered to prove it was the oral evidence of witnesses who stated that the plan had been thoroughly discussed by the city officials and they had decided that it should be done. There had been no plans of the viaduct drawn, no details as to its width or capacity, no specifications of material, no determination as to when it should be built. The gap to be filled by the viaduct is over three thousand feet in width. The evidence showed, and it was practically admitted, that unless this gap was spanned by a viaduct neither the grading of Twelfth street as proposed nor the condemning of the three blocks on the west side would reflect the least benefit on the property included in the benefit district, nor anything but damage to the property abutting Twelfth street.
The evidence in behalf of the city as to the proposed viaduct was to the effect that the reason no ordinance was adopted providing for the construction of the viaduct was that it would be contrary to the city charter to pass such an ordinance until the money was in the city treasury to pay for the structure and there was no money then available for that purpose. In the oral argument before this court it was said that a proposition to issue bonds for this purpose had been submitted to a vote of the people and by such vote authorized, but some question as to the validity of the vote having arisen the issuance of the bonds was delayed and would await the judicial settlement of that question.
The main question is, is the city entitled to judgment in either case until there is some assurance, beyond what was shown by the oral testimony, that this viaduct, without which neither the grading of Twelfth street as proposed in this, nor the condemning of the three blocks in the other suit, would reflect any possible benefit on the property in the benefit district or be of any use to the public? So far as the grading of Twelfth street is concerned it would result in leaving the abutting property on both sides from Washington to Summit street fronting on a deep cut, thus depriving the owners of the use they formerly had of that street and leaving them dependent on such future action as the city...
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