In re Twenty-Third Street Trafficway v. Crutcher
| Decision Date | 07 July 1919 |
| Parties | IN RE TWENTY-THIRD STREET TRAFFICWAY, Kansas City, v. L. T. CRUTCHER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.
Reversed and remanded (with directions).
Clarence I. Spellman and John G. Park for appellants.
(1) The court erred in overruling appellant's motions for new trial and in arrest of judgment. The judgment did not respond to the charter and ordinance and established a different public improvement to that authorized by charter and ordinance. (a) Article 6, Section 16, is legal. Kansas City v. Woerishoeffer, 249 Mo. 1; Wells v. Street Commissioners, 187 Mass. 451, 455; Sears v. Street Commissioners, 180 Mass. 274, 62 L.R.A. 144; In re Third, Fourth and Fifth Avenues, 49 Wash. 109; City of Springfield v. Green, 120 Ill. 269, 273. (b) The elimination of four approaches destroyed the identity of the plan. The verdict and judgment did not conform to the charter and ordinance. Shaffner v. St. Louis, 31 Mo. 264. (c) The charter and ordinance should have been strictly pursued. Leach v. Cargill, 90 Mo. 316; St. Louis v. Koch, 169 Mo. 587, 591; Westport v. Mastin, 62 Mo.App. 647. (d) If one part of a general improvement fails, the entire improvement fails. City of Bloomington v. Reeves, 177 Ill. 161, 168. (2) The court erred in giving instruction 6, which told the jury that they must write "or cause to be written 13 separate verdicts as to the damages and benefits, one for each proposed improvement." The improvement was an entirety, not a combination of units. Authorities above. (3) The court erred in giving instruction 10, which told the jury that the damages and benefits, if any, from the grading of Twenty-third Street, and of each of the intersecting streets must be considered and determined separately, as to each of such streets. Where a single improvement consists of distinguishable parts made one by lawful municipal action damages and benefits must be assessed on account of the improvement as a whole, and not on account of certain of its parts. In re Third, Fourth and Fifth Avenues, 49 Wash. 109; Alden v. Springfield, 121 Mass. 27; Lincoln v. Dore, 176 Mass. 210; City of Bloomington v. Reeves, 177 Ill. 161, 168. (4) The court erred in giving to the jury instruction 11. Kansas City v. Max (In re 6th Street), 207 S.W. 503. (5) The court erred in giving instruction 13, which told the jury, in effect, that they must minutely analyze the improvement and assess only such benefits against property in the benefit district as they could directly trace to a "particular improvement." Authorities above. (6) The court erred in giving instructions 14 and 15, which converted the proceeding from "one general public improvement" into a group of 13 independent improvements. (7) The court erred in giving instructions 16 and 17, which told the jury that only persons whose property abutted on Twenty-third Street might recover damages for such regrading. (a) They misled the jury as to the issues to be tried. (b) Appellants entitled to recover for being cut off from the outside world. They had easements of access. Thurston v. St. Joseph, 51 Mo. 510; Glaessner v. Brew. Association, 100 Mo. 508; Heinrich v. St. Louis, 125 Mo. 424, 427; Press v. Penny & Gentles, 242 Mo. 98, 103; Gaus v Railway, 113 Mo. 308, 315; Schopp v. St. Louis, 117 Mo. 131, 135; Versteeg v. Railway, 250 Mo. 61, 75; Rourke v. Railroad, 221 Mo. 46, 60; Downing v. Corcoran, 112 Mo.App. 645; Putnam v. Railroad, 182 Mass. 351, 353; 1 Lewis on Em. Dom. (3 Ed.), secs. 206, 121, 123; 2 Elliott on Roads and Streets (3 Ed.), sec. 1181; Dantzler v. Railway, 141 Ind. 604, 34 L.R.A. 769; Borghart v. Cedar Rapids, 126 Iowa 313. Immaterial that complainant's property was not directly in front of the obstruction. Powell v. Railroad, 135 S.W. 1153; Sweeney v. Seattle, 57 Wash. 678; Rigney v. Chicago, 102 Ill. 64; C. Hacker v. Joilet, 192 Ill. 415, 425; City of Joliet v. Blower, 155 Ill. 414; Burr v. Leicester, 121 Mass. 241; Vanderburgh v. Railroad, 98 Minn. 329, 6 L.R.A. (N. S.) 741; Dairy v. Railroad, 113 Iowa 716; Winetka v. Clirord, 201 Ill. 475; Mellor v. Philadelphia, 160 Pa. 614.
E. M. Harber, City Counselor, and J. C. Petherbridge, Assistant City Counselor, for respondents.
(1) In this proceeding thirteen different improvements were combined in one ordinance and hence in one proceeding for convenience and in order to save time and expense. There could have been thirteen separate ordinances and all filed in one proceeding, or thirteen separate ordinances and thirteen separate proceedings, or one proceeding combining all the improvements. In any event, there would have to be thirteen separate judgments, as happened in this case. (2) It was necessary to have thirteen separate verdicts -- one for each improvement -- because the procedure and rules for the condemnation of land to widen Twenty-third Street, is governed by Article 6 of the charter; and the procedure and rules for assessing damages and benefits for the change of grade on Twenty-third Street and the itersecting streets, is governed by Article 7 of the charter. The two procedures are entirely different -- one relates to condemnation matters and the other to damages arising on account of the change of grades of streets. But the same jury, the same court, at the same time, may try all of them, as authorized by the practice, under the charter. (3) The instructions were not erroneous but in perfect harmony with the charter and the theory on which the proceeding was bottomed and tried. (4) The ordinance filed in this cause is a pleading and is considered the petition, with thirteen different counts to be construed and decided separately as if there were thirteen different suits. City of Tarkio v. Clark, 186 Mo. 297; Sec. 1971, R. S. 1909; K. C. Charter, 1908, sec. 12, art. 7, p. 304. (5) Lots not abutting on Twenty-third Street were not entitled to damages on account of the change of the grade of Twenty-third Street. Hence the property on Fairmount Avenue and Terrace Place, about which complaint is here made (not abutting on Twenty-third Street) was not entitled to damages on account of the change of grade on Twenty-third Street, although by the grading down of Twenty-third Street the property on such intersecting streets may be shut off entirely from access thereto by way of Twenty-third Street. Gardner v. St. Joseph, 96 Mo.App. 661; Burde v. St. Joe, 130 Mo.App. 453; Rude v. St. Louis, 93 Mo. 408; Wallace v. Railway Co., 47 Mo.App. 491; Stephenson v. Railway, 68 Mo.App. 642; Clemens v. Conn. Mut. Life Ins. Co., 184 Mo. 46; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560. (6) The refusal of the jury and trial court to allow any damages for changing the grade on the two cross streets, is no legal bar to grading such streets down to meet the new grade of Twenty-third Street, if the property-owners desire to have such grading done.
R. H. Field for respondent.
(1) The verdict is in accordance with the evidence as to damages and benefits from the proposed grading. (2) The jury were not required nor authorized to make a verdict for damages as to Fairmount Avenue or Terrace Place in the face of their finding of the fact that the damages exceed the total amount of benefits to the city and public at large, and the private property within the benefit district. And the jury were authorized to limit the assessment of special benefits against only two-fifths of the private property in the prescribed benefit district, and to leave out the remaining three-fifths of the private property in the benefit district unassessed. Kansas City v. Baird, 98 Mo. 221; Kansas City v. Bacon, 147 Mo. 281; Kansas City v. Bacon, 157 Mo. 474; St. Louis v. Brown, 155 Mo. 559. It was never intended to require a jury to render a verdict for damages from a proposed street grading, under Article 7 of the Charter, where the benefits did not equal the damages. It would certainly have been a vain thing for the jury to have made a verdict finding amount of damages from the proposed grading of Fairmount Avenue and Terrace Place, when they could not find the benefits to the city and the property in the prescribed benefit district in an amount equal to the amount of the damage therefrom. (3) Appellants' brief does not assign any error of fact in the finding of the jury that the damages from the proposed grading of Fairmount Avenue and Terrace Place exceeds the benefits to the city and the private property in the benefit district. Appellants' complaints here are that they have been deprived of a recovery of the damage to their property on Fairmount Avenue and Terrace Place, suffered from the proposed change of grade of Twenty-third Street, a thing not alleged nor included in their claims in question filed in this cause. The claims for damages from the proposed grading of Fairmount Avenue and Terrace Place, filed by appellants were for the proposed change of the grade in Fairmount Avenue and Terrace Place, "in connection with the proposed Twenty-third Street Trafficway." Clements v. Yates, 69 Mo. 623; Knapp v. St. Louis, 153 Mo. 560; Fuess v. Kansas City, 191 Mo. 692. (4) Appellants are wrong in their contention that all or none of the proposed improvements under this ordinance must go through, because they are combined in the same ordinance as one general improvement. Section 16 of Article 6 of the Kansas City Charter, relied on by appellants, does not sustain appellants' view of this matter. This section of the charter covers mere matters of procedure only. It merely gave the city the option, in a case like this, where the thirteen improvements are combined in one general ordinance. (5) The finding of the jury on the one issue, to-wit, that the damages on the proposed...
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