In re Grading of Independence and Westport Road

• Decision Date: 19 December 1911
• Citation: 238 Mo. 323,141 S.W. 1103
• Parties: In re GRADING OF INDEPENDENCE AND WESTPORT ROAD, KANSAS CITY. Appeal of SMITH et al.
• Court: Missouri Supreme Court

141 S.W. 1103

238 Mo. 323

In re GRADING OF INDEPENDENCE AND WESTPORT ROAD, KANSAS CITY Appeal of SMITH et al.

Supreme Court of Missouri, Division No. 2.

December 19, 1911.

1. JURY (§ 19)—TRIAL BY JURY—CONDEMNATION PROCEEDINGS.

Though at common law the right of trial by jury in condemnation proceedings did not exist, such rule has been altered by Const. 1875, art. 12, § 4, expressly conferring such right.

2. JURY (§ 12)—RIGHT TO JURY TRIAL—DETERMINATION.

Parties to legal proceedings cannot be deprived, without their consent, of a trial by common-law jury of any issue of fact, for the trial of which it was necessary to call the jury when the first Constitution of the state was adopted, at which time a jury of 12, unless waived by the parties, was necessary for the trial of all issues of fact arising in legal actions or proceedings; juries being dispensed with only in suits in equity, or in the trial of issues which the court was authorized of its own motion to submit to a referee, etc.

3. JURY (§ 19)—RIGHT TO JURY TRIAL— ABANDONMENT OF STREET—TRIAL OF ISSUE.

Where, in a proceeding to enforce a city ordinance providing for the grading of a street, defendants raised an issue without objection as to the existence of the street, claiming that a highway which had previously existed had been abandoned, and, for that reason, the ordinance providing for the improvement of the alleged street was void, defendants on their demand were entitled to a trial of the issue of abandonment by a common-law jury, under Const. 1875, art. 2, § 28, providing that the right of trial by jury as theretofore enjoyed should remain inviolate, etc.

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

In the matter of proceedings to grade Independence and Westport Road in Kansas City, Mo. From an order overruling objections of Richard Smith and another, they appeal. Reversed and remanded.

This is a proceeding begun in the circuit court at Kansas City for the purpose of enforcing a grading ordinance approved October 25, 1906, entitled: "An ordinance to grade Independence and Westport road from Oak street or Gillham road to Janssen Place." A certified copy of the ordinance was filed in the circuit court, and publication thereof was made as prescribed by section 5 of article 8 of the charter, which was adopted by Kansas City in pursuance of the enabling act contained in article 9, §§ 16, 17, Const. 1875. Before the expiration of the time provided for filing the claims for damages, defendants Richard Smith and Olivia Smith appeared and filed separate answers to said proceeding, each of which denied the existence of the road referred to in said ordinance, admitted that many years ago a road of that name "of an uncertain and irregular width, varying from 1 rod to 30 feet," but of no uniform width, and not 40 feet wide in any place, had been used by the public between the towns of Westport and Independence, Mo.; but averring that said road was never legally established nor worked by the road officials of Jackson county, Mo., nor changed nor improved by the city officials of either the city of Westport or Kansas City, Mo., while it was within their respective limits; and averring that since the year 1885 no public money or labor had been expended on said road. The defendants answered, further, that from the settlement of the adjoining territory (which took place in 1885 and 1887) the traveling public ceased to use the Independence and Westport road, but used in lieu thereof irregularly established streets, and that from said time the said road was entirely abandoned by the traveling public, and has never since been used as a highway between said city of Independence and said city of Westport, now a part of Kansas City, Mo., and that for more than 15 years last past (except for the ordinance now sought to be enforced) this alleged part of said Independence and Westport road was never the subject of municipal legislation, nor improved, nor received any attention of any kind or character whatsoever, but has been continuously taxed as the private property of individuals, being taxed for all purposes, etc. The answers then set forth the portion of the road which it averred belonged to the respective defendants, and concluded, to wit: "By reason of all of which this defendant avers that the said Independence and Westport road, which is now sought to be graded in this proceeding, under the said Ordinance No. 34,157, has long since been abandoned as a public road and highway; that the object and purpose for which it was originally set apart and used by the public has long since passed away; that its legal existence as a state or county road and thoroughfare has long since lapsed and been abandoned by the public; that plaintiff, Kansas City, Mo., by its acts and proceedings as above enumerated, is and ought to be estopped to claim any portion of this said road as and for a public street or highway. Wherefore, this defendant prays that this proceeding be dismissed, and that he recover his costs herein expended." The aforesaid answers were filed by leave of court, Thereupon the defendants moved the court for a trial of the issues raised by their separate answers by a common-law jury of 12 jurors, and alleged as grounds for said motion, to wit:

"(1) That each and every issue raised by the separate answers of the defendants Richard Smith and Olivia A. Smith filed in this cause is an issue of fact, and as such is triable only by and before a common-law jury.

"(2) That the said separate answers filed herein raise more particularly the issue of fact as to whether the said alleged road sought to be graded in this proceeding has not in fact been abandoned by the public long prior to the institution of these proceedings and the passage of the ordinance of Kansas City, Mo., on which these proceedings are based."

This motion was overruled by the court, to whose action in so doing defendants duly excepted and presented a bill of exceptions, which was signed, sealed, and delivered to the court, and made a part of the record the 16th day of January, 1908. Thereupon the cause was tried before the court, and the respective parties presented the testimony of many witnesses, covering a long period of time, bearing on the issues raised by the answers of the defendants.

After hearing all the evidence and refusing a number of declarations of law requested by defendants, the court gave four declarations of law at the request of defendants, two of which are, to wit:

"(2) The court declares the law to be that under the charter of Kansas City, Mo., no ordinance to grade a street or highway can have any legal effect or validity if at the time of the passage of such ordinance to grade such street or highway it did not have any legal existence.

"(3) The court declares the law to be that in proceedings to grade public streets and highways under the charter of Kansas City, Mo., and the general law, the jurisdiction of the court depends on the validity of the ordinance to grade, and, if the ordinance be null and void for any reason, then the court is without jurisdiction, and such proceedings must be dismissed."

After argument of counsel the court handed down its decision on the 14th of December, 1907, which recited the previous steps taken in the cause, the refusal of defendant's demand for a common-law jury and the exception saved to that ruling, and announced the following finding of facts upon the issues joined:

"(1) Ordinance No. 34,157, entitled, `An ordinance to grade Independence and Westport road to Janssen Place,' was passed by the common council of Kansas City, Mo., and was approved by the Mayor October 25, 1906.

"(2) The said road when in Jackson county, Mo., was located, laid out, and put in use about 1841 by proceedings in the county court of said county, pursuant to the law of the state then in force, and became a state and county road, and was worked by the county as such up to the year 1887. It was a public traveled road for some years prior to 1841, and the commissioners appointed by Legislature laid out the road along the line where the road theretofore traveled had been, and where the road was at the time of the passage of said ordinance.

"(3) In 1891 the limits of Westport were extended over the territory which included that portion of the road described in said ordinance, and thereafter, in 1897, such territory became part of Kansas City, Mo., by an extension of its limits.

"(4) That portion of said Independence and Westport Road mentioned in said ordinance has never been vacated, abandoned, or closed, and no ordinance of any city or resolution of the county court was ever passed to that effect, but at all times since it was opened for use, about 1841, up to the time of the passage of said ordinance, it was actually open and actually used as a public highway, thoroughfare, and passageway for the public as follows: Up to about the year 1887 it was used generally by the public. After said time and until about the latter part of the year 1897, the use by the public was not so general, because other streets in the general neighborhood had been opened. From the latter part of the year 1897 to the time the construction of the sewer hereinafter mentioned, it was used by the people living upon what was called the `Perkins' or `Flower' tract, and by the Gamble family, who lived in a small house east of the Perkins tract, such as tradespeople who had need to deliver merchandise there, and by visitors to said houses, and was open so as to be used by all of the public who had need to use it until about March, 1907, at which time it became impassable by reason of the construction of a sewer in said public highway.

"(5) That the land sought to be graded is a public highway, and that the only rights of the defendants Richard Smith and Olivia Smith therein are those of abutting property owners.

"(6) No claims for damages have been presented...