State ex rel. McCaskill v. Hall

• Citation: 28 S.W.2d 80,325 Mo. 165
• Decision Date: 15 May 1930
• Docket Number: 30251
• Parties: The State ex rel. Delmar E. McCaskill v. Robert W. Hall, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

28 S.W.2d 80

325 Mo. 165

The State ex rel. Delmar E. McCaskill v. Robert W. Hall, Judge of Circuit Court

No. 30251

Supreme Court of Missouri

May 15, 1930

Peremptory writ denied.

Anderson Gilbert & Wolfort for relator.

(1) The Constitution of Missouri and the Charter of the city require the damages to each owner to be separately ascertained and paid. (a) The Constitution requires that before private property can be taken the compensation shall be ascertained and until the compensation is paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner divested. Sec. 21, Art II. (b) The Charter requires compensation allowed to and benefits assessed against each owner, to be separately stated, and where benefits are assessed and damages allowed the lesser shall be deducted from the greater. Sec. 5, Art. XXI. The Charter further provides that for the payment of damages awarded in condemnation, the commissioners shall assess benefits "separately and in the name of the several owners thereof the amount that each such lot or parcel of property or interest therein" shall be specially benefited by the public improvement. Sec. 4, Art. XXI. It is further provided that the Commissioners shall assess damages "which the owners may severally sustain." Sec. 3, Art. XXI. It is further provided that at any time after the commissioners' report has been filed the city may pay into court the amount of damages assessed, less the benefits, and shall thereupon be entitled to take possession of or damage the property appropriated. Sec. 6, Art. XXI. (2) By the Charter and the Constitution the circuit judge has no power to make an award until commissioners have made the award of this relator's damages. Sec. 7, Art. XXI, Charter of St. Louis; Sec. 21, Art. II, Constitution of Missouri. (3) The interest of the relator is a several and distinct interest and is not common, or joint, with any other owner. The relator owns the unexpired term of a lease which commenced on July 1, 1902, and expires on June 15, 2001. (4) The payment of money into court to act as security for the owner is not a compliance with the constitutional provision. The right to have the amount of his damages placed at his disposal is a constitutional right, of which the owner cannot be deprived by any act of the Legislature. Railroad v. Fowler, 113 Mo. 474; Holmes v. Kansas City, 209 Mo. 530. (5) By the report and proceedings in the circuit court the relator's property will be taken without compensation, or without due process of law, in violation of the Constitution of Missouri (Sec. 21, Art. II, and Sec. 30, Art. II), and of the United States (Amendment No. 14), in that relator's property could be taken before the compensation is paid to relator or deposited in court for the relator, so relator could immediately obtain the same, and in that there will be put upon relator the expense of representing others who claim an interest in the property and of litigation of others who claim an interest in the property. (6) The relator is entitled to know how much it is proposed to allow relator, otherwise relator cannot defend and protect his rights.

Julius T. Muench, G. William Senn, J. B. Steiner and Seward McKittrick, William L. Mason and John B. Dale and Marion C. Early for respondent.

(1) Commissioners, in condemnation proceedings, need not apportion the damages between landlord and tenant or between other partial interests. Secs. 1791 to 1793, R. S. 1919; Secs. 7767-7777, R. S. 1919; St. Louis City Charter, Art. 21 Sections 1-8; Morgan v. Willman, 318 Mo. 151, 1 S.W.2d 193; Roach v. Landis, 1 S.W.2d 203; State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490; Railroad Company v. Story, 96 Mo. 611; Union Depot Co. v. Frederick, 117 Mo. 138; Kansas City & A. Ry. Co. v. View, 156 Mo. 608; Butler County Railroad v. Barron, 173 Mo.App. 365; Murphy v. Barron, 286 Mo. 390; Cassville School District v. McArtor, 286 S.W. 729; Peterson v. Minneapolis, 195 Minn. 300, 221 N.W. 14; Zimmerman v. Railroad Co., 76 N. J. L. 251, 71 A. 127; Schill v. Board of Chosen Freeholders, 98 N.J.Eq. 469, 131 A. 584; Pennsylvania Railroad Co. v. National Docks, 57 N. J. L. 86, 30 A. 183; Bright v. Platt, 32 N.J.Eq. 362, 370; Chicago etc. Ry. Co. v. Baker, 102 Mo. 553. (2) The Charter provides no procedure whereby the commissioners can adequately determine the value of separate interests, nor are they a proper tribunal to determine questions of law therein. Charter, Art. 21; Bright v. Platt, 32 N.J.Eq. 371; Peterson v. Minneapolis, 221 N.W. 14. (3) The purpose of the proceeding is to ascertain the amount of damages to be paid by the city; the city is not concerned with the apportionment of damages among the owners of the various interests in any single parcel. State ex rel. Scott v. Trimble, 308 Mo. 123, 272 S.W. 66; Butler County Ry. Co. v. Barron, 173 Mo.App. 368; Chicago etc. Ry. Co. v. Elliott, 117 Mo. 553; Chicago etc. Ry. Co. v. Baker, 102 Mo. 553. (a) The proceeding is one in rem, and the res or subject-matter of the suit is the property proposed to be taken, not the rights or interests of parties in land. Morgan v. Willman, 1 S.W.2d 198, 318 Mo. 151; Edmands v. Boston, 108 Mass. 544; State ex rel. Kafka v. District Court, 128 Minn. 432, 151 N.W. 144; Crane v. Elizabeth, 36 N.J.Eq. 343; United States v. Dunnington, 146 U.S. 338, 352, 36 Law Ed. 996. (b) The just compensation to be paid by the city is the value of the property taken, determined as if held by one owner. 2 Lewis, Eminent Domain (3 Ed.) 1253, Sec. 716. (c) The issue referred to the commissioners is limited by the purpose and subject-matter of the suit; the issue is, therefore, to determine the just compensation, that is, the value of the property taken, as if held by one owner, leaving the apportionment to the court. Authorities under Point I. (4) The award stands in the place of the property taken and is held by the several owners thereof in the same manner as the property was held. Ross v. Gates, 183 Mo. 338; Buchanan v. Kansas City, 208 Mo. 674; Kansas City & A. Ry. Co. v. View, 156 Mo. 608; Kansas City etc. Railroad Co. v. Weaver, 86 Mo. 473; Chicago etc. Ry. Co. v. Baker, 102 Mo. 553; Thompson v. Ry. Co., 110 Mo. 147; Cassville School Dist. v. McArtor, 286 S.W. 729. (5) The apportionment of the award among diverse interests in the property is ancillary to the chief purpose of the suit and is properly made upon interpleader, motion for distribution, or in a separate proceeding. Cassville School Dist. v. McArtor, 286 S.W. 729; Ross v. Gates, 183 Mo. 338; Murphy v. Barron, 286 Mo. 390, 228 S.W. 492; Kansas City & A. Ry. Co. v. View, 156 Mo. 608; McAllister v. Reel, 53 Mo.App. 81; Hilton v. St. Louis, 99 Mo. 199; State ex rel. Scott v. Trimble, 308 Mo. 123, 272 S.W. 66; School Dist. of Columbia v. Jones, 229 Mo. 510. (6) A distribution of the award made by commissioners is not binding upon the parties; the award may be reapportioned on motion, even after the time for exceptions has expired and the amount of the total award is fixed and has been paid into court. Cassville School Dist. v. McArtor, 286 S.W. 729.

OPINION

Ragland, C. J.

Mandamus. There is pending in the Circuit Court of the City of St. Louis a condemnation proceeding having for its general purpose the widening of Market Street from 3rd Street west to 39th, and there had been filed therein the report of the commissioners appointed by the court to assess damages and benefits. With respect to one parcel of land which the city seeks to condemn for street purposes the report is as follows:

"Item No. 78.

"The damages sustained by Theodosia Wallace Pleadwell, Frank L. Pleadwell, husband of Theodosia Wallace Pleadwell, Benjamin Harris, lessee; Sol Kaiser and Abe Moulton, co-partners doing business as Kaiser & Moulton Mercantile Co., lessees; Julius C. Herrmann and Clara Herrmann, lessees; Waldemar Ude, trustee for Louise E. Huesemann; Louise E. Huesemann, Attie C. McCaskill, sublessee; Cornelius M. McDonald, trustee for John E. Stilwell; Clyde C. Ketchum, trustee for Raymond E. Gallagher; Raymond E. Gallagher, Theodore Leontsinis and Emanuel Leontsinis, sublessees; the several parties owning or claiming an interest in a lot or parcel of land, consisting of the value of the land and property proposed to be taken by the condemnation thereof, together with the improvements thereon, to-wit:

"(a) A parcel of land in city block 903, comprising lots 13 and 12 and part of lot 11 of J. H. Lucas and A. L. Hunt's addition, a subdivision, having an aggregate front of 80' on north line of Market Street (as heretofore established 60 feet wide) by a depth, between parallel lines along the west line of Nineteenth. Street (60' wide) of 73' 0 1/2" to a 15 foot alley bounded on the west by property now or formerly of Rudolph Realty Co., et al.; we ascertain to be $ 259,875; which sum the said parties shall recover from the city of St. Louis."

It appears from the petition for the writ that Theodosia Wallace Pleadwell and Frank L. Pleadwell, her husband, are the owners of the fee in the above described land; that on the day of they leased the property to Clara Herrmann and Julius C Herrmann for a term commencing July 1, 1902, and ending on June 30, 2001, under the terms of which lease the said Herrmanns are bound to pay to the said Pleadwells as rental the sum of $ 3,000, per year, net; that on the day of the said Herrmanns subleased said premises for the remainder of their term to Attie C. McCaskill, under which lease the said McCaskill is bound to pay to the said Hermanns a net rental of $ 4,000 per year; that thereafter relator, Delmar E. McCaskill, acquired the leasehold of the said Attie C. McCaskill; and that relator on the day of...