173 S.W.2d 8 (Mo. 1943), 38358, City of Kirkwood v. Venable

Docket Nº38358
Citation173 S.W.2d 8, 351 Mo. 460
Opinion JudgeDALTON
Party NameCity 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
AttorneyGeorge F. Heege for appellant. J. C. Hoester, Jr., for respondent.
Judge PanelDalton, C. Bradley and Van Osdol, CC., concur.
Case DateJuly 06, 1943
CourtSupreme Court of Missouri

Page 8

173 S.W.2d 8 (Mo. 1943)

351 Mo. 460

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

No. 38358

Supreme Court of Missouri

July 6, 1943

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.

OPINION

DALTON

Page 9

[351 Mo. 462] 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.

Page 10

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 [351 Mo. 463] and the presence of defendant's...

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