Chaplin v. Kansas City

• Decision Date: 30 June 1914
• Docket Number: No. 16495.,16495.
• Citation: 168 S.W. 763,259 Mo. 479
• Parties: CHAPLIN v. KANSAS CITY et al.
• Court: Missouri Supreme Court

168 S.W. 763

259 Mo. 479

CHAPLIN v. KANSAS CITY et al.

No. 16495.

Supreme Court of Missouri, Division No. 1.

June 30, 1914.

1. MUNICIPAL CORPORATIONS (§ 276) — PUBLIC IMPROVEMENTS — PARKWAYS — "BOULEVARDS."

Kansas City Charter, art. 10, § 5, authorizes the board of park commissioners to adopt a system of public parks, parkways, and boulevards, to select routes and streets for boulevards, and, with the authority of the common council to purchase, condemn, or otherwise acquire land for parks, parkways and boulevards. Held that as a "parkway" is defined as a broad thoroughfare, beautified with trees and turf, and a "boulevard" is defined as a broad avenue in or around a city, especially one laid out with trees, belts of turf, etc., the park commissioners have full power to select streets for parkways, and, in the exercise of that power, may select an alley for a parkway.

2. EMINENT DOMAIN (§ 243) — JUDGMENT — CONCLUSIVENESS.

Under the direct provisions of Kansas City Charter, art. 10, § 11, persons claiming or holding through or under those who owned land at the time part of it was condemned for boulevards

and parkways are bound by the proceedings.

3. EMINENT DOMAIN (§ 47) — POWER OF CONDEMNATION — EXTENT OF POWER.

Where the state conferred its full powers of eminent domain upon a municipality which power applies to every species of property, except as limited by the state and federal Constitutions, the municipality may condemn a public alleyway for a parkway, for the municipality already owns the public easement, and the private easements of abutting owners are private property subject to condemnation.

4. EMINENT DOMAIN (§ 243) — PROCEEDINGS — EFFECT OF JUDGMENT.

Under Kansas City Ordinance, art. 10, § 13, referring to condemnation of land for parkways, and providing that at the hearing of the condemnation parties interested may submit evidence to the jury of freeholders, and such jury may examine personally all property claimed to be damaged, a landowner, on condemnation of an alleyway upon which his property abuts, may show all damages suffered by the condemnation, and the judgment of condemnation is conclusive as to that issue.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Suit by Emeline Chaplin against Kansas City and others. From a judgment for defendants, plaintiff appeals. Affirmed.

H. S. Julian, of Kansas City, for appellant. A. F. Evans, Jay M. Lee, and A. F. Smith, all of Kansas City, for respondents.

BROWN, C.

This suit is to enjoin the construction of an artificial stone sidewalk six feet wide in an alley, the north line of which forms the southeastern boundary of plaintiff's lot for a distance of 76.45 feet northeasterly from the line of Hamilton street in that part of Kansas City which was formerly Westport. This sidewalk is a part of an improvement called a "parkway," connected with the park and boulevard system of Kansas City. The plaintiff's land fronts southwesterly 111 feet on Hamilton street, which extends in a southeasterly and northwesterly direction. From the northwest corner at Hamilton street the northern boundary extends due east 120 feet to the west side of Baltimore avenue as widened; thence south 53.47 feet to the northwest line of the alley already mentioned; thence south westerly along the northwest line of the alley to the northeast line of Hamilton street. Originally it extended 49.51 feet farther east, but in condemnation proceedings to widen Baltimore street as a part of this same parkway plan, the eastern end to the extent stated was appropriated. The defendants are the city of Kansas City, the Missouri Sidewalk & Construction Company, the contractors for the work sought to be enjoined, and D. J. Haff, Henry D. Ashley, and John W. Wagner, the members of the board of park commissioners.

The petition states that this land was platted by the proprietor, as a part of Westport, in 1835, the alley, 12 feet wide, being dedicated on this plat. It has never been vacated, and is now included in Kansas City, and has been converted into the park system of that city under ordinance No. 39145, entitled "An ordinance to open and establish a public parkway in Westport district," passed and approved March 30, 1908, and that the construction company is about to construct the sidewalk under an ordinance of the city approved September 13, 1910, and also to construct artificial stone curbing along the alley at the same place, and that the city and its board of park commissioners will issue tax bills for all said construction, and thus cloud the plaintiff's title. The petition contains no statement as to other damage, nor does it mention the effect the work will have upon the value of plaintiff's lot. In fact, the appellant, at the trial, successfully resisted the introduction of evidence on that issue. The prayer is that "the defendants, and each of them, and their agents and servants, be enjoined and prohibited from building artificial stone sidewalks or artificial stone curbing in, along and over said alleyway," and for general relief. The defendants answered, admitting that they were about to convert the alley in question into park property, and that artificial stone sidewalks would be laid upon it, but claimed that the fee in the alley had been condemned under ordinance No. 39145, and had become vested in Kansas City for park purposes and divested out of plaintiff and her grantor, and asserting that they had the right, power, and authority to go ahead and convert the alley into grass plots and sidewalks and flower beds as they might see proper so to do. Plaintiff replied, admitting that the east 49.50 feet of her lot was taken under said condemnation proceedings under ordinance No. 39145, but denied that the city attempted to take said alleyway under those proceedings, and alleged that the said alleyway was dedicated and devoted to a public purpose, and that it was beyond the powers of Kansas City under its charter to take such alley for park purposes, and that under ordinance No. 39145 it only attempted to take, and only had the power to take, and only did take, private property, and that the city never attempted to condemn or take appellant's fee and easement in the alleyway.

Upon the trial ordinance No. 39145 was introduced. It provided:

"That a public parkway be, and the same is hereby opened and established in the Westport park district in Kansas City, Jackson county, Missouri, comprising and including the following described lands, situated in said Westport park district."

Then followed a description of the land included in the Parkway, which includes the alley already described, together with the strip 49.51 feet wide to be appropriated from the east end of the plaintiff's land to widen Baltimore avenue. After describing all the lands included in the proposed parkway it proceeds:

"And all the private property within the boundary lines above described is hereby taken and condemned for public use as a part of said parkway, excepting the use and easement for railway purposes of the tract or tracts now occupied and used by the old Kansas City, Memphis and Mobile Railroad Company, now known as the Kansas City and Westport Belt Railway."

The answer pleaded the appropriation and condemnation of all the land included in the ordinance. The character of the improvement contemplated on the front of the plaintiff's lot is an artificial stone sidewalk 6 feet in width, lying 4 feet outside the property line, the intervening space being intended for grass. Then comes a space 10 feet wide for grass and trees. Only two feet of this comes within the limits of the 12-foot alley, the remainder extending over land appropriated for that purpose to the curb line. Outside of this is the paved driveway of the road 30 feet wide.

Upon the trial the plaintiff's bill was dismissed,...