Peters v. Buckner
Decision Date | 08 July 1921 |
Docket Number | 22649,22650. |
Citation | 232 S.W. 1024,288 Mo. 618 |
Parties | EDNA M. PETERS et al. v. THOMAS B. BUCKNER, Judge of Circuit Court, et al. THE STATE ex rel. MEADOW PARK LAND COMPANY v. THOMAS B. BUCKNER, Judge of Circuit Court |
Court | Missouri Supreme Court |
Both writs made permanent.
Application for writ of prohibition by Edna Peters and another against Thomas B. Buckner, Judge, and others, and application by the State, on the relation of the Meadow Park Land Company, for writ of mandamus against Thomas B. Buckner, Judge. Writs made permanent.
Sanford B. Ladd for defendants.
(1) The writ of prohibition ought not to issue Rothan v Railroad, 113 Mo. 142; Railroad v. Inv. Co., 205 Mo. 174; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Ry. Co., 100 Mo. 59; State ex rel. v. Withrow, 108 Mo. 8; State ex rel. v. Scarritt, 128 Mo. 331; Delaney v. Police Court, 167 Mo. 679; State ex rel. v Riley, 203 Mo. 192; State ex rel. v. Thomas, 278 Mo. 98. (2) The writ of mandamus ought not to issue. Rothan v. Railroad, 113 Mo. 142; Railroad v Inv. Co., 205 Mo. 174; Williams v. Judge of Cooper Court, 27 Mo. 227; Miltenberger v. St. Louis County Court, 50 Mo. 172; State ex rel. v. Smith, 105 Mo. 9; State ex rel. v. Neville, 110 Mo. 349; State ex rel. v. McKee, 150 Mo. 243; State ex rel. v. Neville, 157 Mo. 394; State ex rel. v Fort, 180 Mo. 108; State ex rel. v. West, 272 Mo. 313. (3) There was no error in the instruction given by Judge Buckner to the commissioners; it embraced a correct view of the law of this State. Van De Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 204; Funke v. St. Louis, 122 Mo. 138; United States v. Certain Lands, 112 F. 622; Doan v. Cleveland Railroad, 92 Ohio St. 461; Frazer v. City of Chicago, 186 Ill. 480; Bacon v. Walker, 77 Ga. 336; Long v. City of Elberton, 109 Ga. 28; Lewis on Eminent Domain (3 Ed.), sec. 366; Dillon on Mun. Corp. (5th Ed.) sec. 1018.
OPINION
In Banc.
Prohibition Mandamus.
These two cases were argued and submitted to this court as one case, and for that reason we will write the opinion as though only one case were here. The facts are undisputed, as shown by statements of counsel, and are as follows:
The controlling facts and the applicable legal principles in these two cases being so nearly identical, it appears to us that by considering them together as practically one case the time and labors of the court, as well as of counsel, will be conserved, and accordingly we shall do so.
The object and purpose of each of these suits is to control the judicial conduct of Judge Buckner of our Jackson Circuit Court and of his condemnation commissioners, whom he appointed to assess damages accruing to property owners in a certain condemnation case to the extent of requiring them to consider of and determine the amount of plaintiffs' damage by reason of the taking of their property for public use.
The plaintiff in the condemnation case is the School District of Kansas City, and the defendants, among whom are the plaintiffs at bar, are all of the owners of lots in Meadow Park Addition in that city, and the School District is seeking to condemn and appropriate Blocks 3 and 4 in that addition for public use as a schoolhouse site. The addition was platted in January, 1910, and is half a mile long east and west, and one-fourth of a mile wide north and south, and Meyer Boulevard, one of the prominent boulevards of the city, it being one hundred and forty feet in width and about two and a half miles long, runs east and west through the middle of the addition, and into Swope Park at its easterly terminus. The proposed schoolhouse site, Blocks 3 and 4, comprise a tract of about ten acres which fronts south on the Meyer Boulevard and east on the Morning Side Drive Boulevard, and occupies the most elevated, commanding and beautiful location in the entire addition, and indeed of the entire neighborhood. Each and every lot in that addition is impressed with a certain use, with an easement, or more specifically, a negative easement, which was created and is evidenced by certain "restrictions and agreements," contained in the title deeds of each and every lot-holder, except those lots not yet sold but now owned by the original owner, Meadow Park Land Company; that company is the common source of title, and it established and promulgated the plan and purpose of these restrictive covenants and agreed with all purchasers in the addition and owners of adjacent land to embody the same covenants in the title to every lot in the addition, except a slight area, which is not material here; and both express and implied covenants and restrictions exist between it (the Meadow Park Land Company) and each and all the purchasers and grantees of it of lots in said addition, and also by an express contract between it and the owners of adjacent lands, to the effect that the same covenants and restrictions herein set out shall be incorporated in the title and enforced as to each and every lot in said Meadow Park Addition, whether they be owned by it, the Meadow Park Land Company, or its grantees. And as to this, the express language of the answer of the Meadow Park Land Company in the said condemnation case, which allegations are set out in the petitions for these writs and are therefore admitted by the defendants in the case at bar by reason of their demurrers to the petitions for these writs, is to this effect:
The exact terms of the restrictive covenants are as here set out; and there is no dispute about them, for they are recited in the condemnation petition and in each of the petitions for these writs, and consequently are admitted by all parties, and they are embodied in each and every deed from the Meadow Park Land Company to its grantees, the Peters as well as every other lot-owning defendant in the condemnation case, immediately following the granting clause in such deeds, and they are as follows:
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