City of Kirkwood v. Venable
| Decision Date | 06 July 1943 |
| Docket Number | 38358 |
| Citation | 173 S.W.2d 8,351 Mo. 460 |
| Parties | City of Kirkwood, a Municipal Corporation, v. Maybelle C. Venable, Joseph F. McMahon, Moore Bros. Construction Company and Felig Ferrenbach, Inc., a Corporation, Defendants, Maybelle C. Venable, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied July 20, 1943.
Appeal from Circuit Court of St. Louis County; Hon. John W Wolfe, Judge.
Affirmed.
George F. Heege for appellant.
(1) The evidence affirmatively showed that the contemplated use of defendant, Venable's, property was not public and was a judicial question and as such should be judicially determined without the regarding of any legislative assertion that the use is public. Constitution of Missouri, Art. II, Sec. 20. (2) The use alleged was public but the proof showed that it was private. This was a judicial question. Constitution of Missouri, Art. II, Sec. 20. (3) The condemnation suit here was a mere subterfuge to serve a private purpose. The purpose was not a public one in such a sense that the city was authorized to condemn therefor. Kansas City v. Hyde, 196 Mo. l. c. 511; Aldridge v. Spears, 101 Mo. l. c 406; St. Louis v. Brown, 155 Mo. l. c. 555; St. Joe Terminal Ry. Co. v. Hannibal & St. Joe Ry. Co., 94 Mo. l. c. 542; City of Kirksville v. Hines, 225 S.W. l. c. 95. (4) Plaintiff's case must fail because there is no evidence of any attempt to agree on a compensation with the owner of the land, which fact must appear on the face of the record in the proceedings for condemnation. Kansas City, etc., R. Co. v. Campbell, 62 Mo. 585; Cape Girardeau Macadamized Road Co. v. Dennis, 67 Mo. 438.
J. C. Hoester, Jr., for respondent.
(1) The court was wholly warranted under the evidence in affirmatively finding that the taking of the property of defendant was for a public use as contemplated by the statutes of this State. R. S. 1939, secs. 6975, 6998 to 7010, inclusive; McQuillin on Municipal Corporations (2 Ed.), sec. 1578; Petet v. Clanahan, 297 Mo. 677. (2) Under the statutory power invested in a municipality it is entirely proper for the city to select property to be taken for public use as contradistinguished from similar property in the same locality, to determine its suitableness for the use to which it is proposed to be put, and to decide the quantity and amount required. It makes no difference therefore whether in the exercise of the power of eminent domain the municipality doesn't take other sites or plots of ground which might be even in the same neighborhood and also available. Kansas City v. Liebi, 298 Mo. 569; See McQuillin on Municipal Corporations (2 Ed.), sec. 1588; Simpson v. Kansas City, 111 Mo. 237. (3) In all condemnation proceedings it is the universal rule that the following questions and none other as to the right to condemn are reviewable by the courts: First: Whether the petitioner has the power to exercise the rights of eminent domain. Second: Whether the property itself is of the nature subject to condemnation. Third: Whether the property is being taken for a public or private use. Fourth: Whether the powers being used take an excessive amount of property. Spokane v. Merian, 80 Wash. 222; Bowden v. York Shore Water Co., 114 Me. 150; Depue v. Banschbach, 273 Ill. 574.
Dalton, C. Bradley and Van Osdol, CC., concur.
Action by plaintiff, a municipal corporation organized and existing under Art. 7, Chap. 38, R. S. 1939, to condemn four described lots in said city for a public park. By answer defendant Venable, the owner of the lots, alleged that because of its location the property was "not fit or suitable for public use"; that the proceeding was not brought in good faith; that the described lots were not sought "to be taken for public use and for public parks or squares for the benefit of the residents of the city," but to destroy the property, demolish the improvements, improve the immediate neighborhood and oust defendant's brother from the premises and community; and that, for the reasons stated, the court was without jurisdiction to condemn the described lands.
After a hearing before the court, an order and judgment of condemnation was entered, as follows: "Condemnation granted as prayed." Commissioners to assess the damages were appointed and, upon the filing of their report, the plaintiff paid the amount into court for defendants, and defendants were notified thereof. No exceptions were filed to the report and judgment was entered "that said property stand condemned for public use and purposes and that the City of Kirkwood may take possession of said property." Defendant Venable has appealed.
No question is raised concerning the amount of damages, nor with reference to the right of plaintiff to condemn in good faith for public purposes or for a public park (See, St. Louis County Court v. Griswold, 58 Mo. 175), but appellant contends that "the evidence affirmatively showed that the contemplated use of defendant Venable's property was not public"; "that the purpose of the condemnation was . . . for the ulterior purpose of removing an alleged eyesore and the presence of defendant's brother"; that the purpose was "not a public one in such sense that the city was authorized to condemn therefor," but was "a mere subterfuge to serve a private purpose"; and that "plaintiff's case must fail because there was no evidence of any attempt to agree on a compensation with the owner of the land."
Since the issue raised concerns the authority of the city, under the pleadings and evidence in the case, to condemn the described property and the power and authority of the court to take title from defendant Venable for the purposes shown by the evidence and to vest it in the plaintiff, title to real estate is directly involved and we have jurisdiction of the appeal. Consolidated School Dist. No. 2 of Clinton County v. O'Malley, 343 Mo. 1187, 125 S.W.2d 818, 819; State ex rel. State Highway Commission v. Gordon, 327 Mo. 160, 36 S.W.2d 105, 106; Thomas v. Craghead, 332 Mo. 211, 58 S.W.2d 281; State ex rel. Palmer v. Elliff, 332 Mo. 229, 58 S.W.2d 283, 284.
The action was brought pursuant to the terms of a city ordinance of said city finding it "necessary and desirable to acquire" the described property "for public park or parks and playgrounds" and authorizing the acquisition thereof by purchase or condemnation and empowering the city attorney to take the necessary steps to condemn the described lots.
The property is located in what is referred to as the center of the business district of said city. It fronts 200 feet on the north side of Madison Avenue and lies between Madison Avenue and the Missouri Pacific Railroad right of way. It is east of Clay Avenue, on which is located a street car line and a viaduct over the railroad tracks. The property is within 200 feet of city property upon which is located a new city hall, recently completed at a cost of $ 75,000. Although the property adjoins the switch yards, it is higher than the switch yards and there is a drive between it and the railroad right of way. The only improvement on the property is a two story frame house and "there was a time when it was one of the show places of Kirkwood." The house is now old and it has not been painted in thirty to thirty-five years. For more than ten years there have been no repairs and the house is in a dilapidated condition. It caught on fire in October, 1940, and again in March, 1941, and the damage has not been repaired. An old Model T Ford stands in the front yard and has been there six or seven years. The radiator has been removed. There are also two automobile bodies and some baskets and crates and lumber on the property. When the house caught fire, books, newspapers and other things were put out in the yard, where they have remained awaiting repairs to the house. In the meantime they have been covered over with tin and old newspapers. The lots have not been mowed for many years. The weeds and grass have been permitted to grow, except under some wild plum and mulberry trees, and there they were cut with a scythe. When trees and branches fall in the yard, they are permitted to remain there. There is much rubbish lying around, to wit, leaves, trash, bottles, cans, brickbats and junk. For many years the condition of the property has continually gotten worse and it looks disreputable and unsightly. Because of its close proximity to the railroad tracks, the property is a fire hazard. On account of the collection of rubbish and junk, the property is a menace to the health and safety of the community. The property appears in unseemly contrast to the new city hall.
Since the last fire in March, 1941, the property has been vacant, but previously it was occupied by defendant's brother, who was interested in collecting old newspapers, bottles, street car transfers, automobile license plates and other things of interest to him. Much old furniture, belonging to the former owners of the property, remains in the old house.
Because of the condition of the premises, repeated complaints have been made to the city officers and they have been pressed to remedy the situation. The public generally has complained, different organizations have circulated petitions and other action has been taken. Defendant Venable's brother has been arrested for maintaining a nuisance and for not connecting with the sewer system. He also claims to have been arrested, lectured, threatened, and harassed on other charges. It appears that at one time an insanity proceeding was instituted, but there is little evidence that any of the complaints were carried through to a conclusion.
The city ordinance, authorizing the condemnation of the property for park purposes, takes cognizance of the condition of the property as follows: "And the...
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