the State ex rel. Siegel v. Grimm

Decision Date21 May 1926
Docket Number26143
Citation284 S.W. 490,314 Mo. 242
PartiesTHE STATE ex rel. A. J. SIEGEL et al. v. J. HUGO GRIMM, Judge of Circuit Court, City of St. Louis
CourtMissouri Supreme Court

Preliminary rule discharged.

Leahy Saunders & Walther, Bryan, Williams & Cave, Cornwell & Hicks and Henry S. Baker for relator.

(1) Every material requirement of the statute authorizing condemnation proceeding must be strictly complied with. Williams v. Kirby, 169 Mo. 622; City of St Louis v. Koch, 169 Mo. 587. Everything is essential which the law requires to be done. Leslie v. St Louis, 47 Mo. 474; Union Depot Co. v. Federick, 117 Mo. 38; Shaffner v. City, 31 Mo. 264; City of St. Louis v. Gleason, 93 Mo. 33; People v. Trustees, 32 Hun. (N. Y.) 508; Hughes v. Sellers, 34 Ind. 337. (2) "A petition in proper form as required by statute is a jurisdictional prerequisite to the authority of the court to entertain proceedings thereunder." 2 Nichols on Eminent Domain (2 Ed.) secs. 398, 425, 402, p. 1065 et seq.; Lewis on Eminent Domain (3 Ed.) p. 977; Williams v. Kirby, 169 Mo. 622; In re Grove Street, 61 Cal. 438; City of St. Louis v. Gleason, 93 Mo. 33; City of St. Louis v. Glasgow, 254 Mo. 262; City of St. Louis v. Cruikshank, 16 Mo.App. 495; Kas. C. I. R. Co. v. Davis, 197 Mo. 669; In re Flatbush Avenue, 1 Barbour (N. Y.) 286. (3) Requirements of the statute as to descriptions of property sought to be taken are enforced with especial strictness. "Where land is to be taken for public purposes the description should be as definite as is necessary in a deed." Nichols on Em. Domain, sec. 397, p. 1065; Williams v. Kirby, 169 Mo. 622; Nashville v. Hobbs, 120 Ala. 600; Hughes v. Sellers, 34 Ind. 337; Anderson v. Pemberton, 89 Mo. 61; Omaha v. Richards, 38 Neb. 847; California Ry. Co. v. Hooper, 76 Cal. 404; Powers v. Irish, 23 Mich. 429; Railway v. Circuit Judge, 95 Mich. 318; Mathias v. Commissioner, 49 Mich. 465; Rice v. Danville R. R. Co., 7 Dana (Ky.) 81. (4) Where description of property sought to be condemned is required, the setting out of the description in the petition being essential to jurisdiction, the description cannot be amended. Grant v. Hyde, 67 Ohio St. 166. (5) The charter of city of St. Louis requires the filing within six months from taking effect of ordinance of petition "setting forth the general nature of the public use for which the property is to be appropriated or damaged, a description of the property and the estate or interest therein in each instance which the city seeks to appropriate or damage." (6) Petition which does not contain a description of the property and the estate or interest therein in each instance which the city seeks to appropriate or damage, fails to state a cause of action. St. Louis v. Waterman, 277 Mo. 221; St. Louis v. Breuer, 223 S.W. 108. (7) The plat filed with the petition as an exhibit cannot be considered as part of the petition in determining the sufficiency of the petition. Curry v. Loekey, 35 Mo. 389; Coal & Iron Co. v. Long, 231 Mo. 605. (a) The charter requires the matters in question to be set out in a petition, not on a plat. It is the filing of such a petition, not of a plat, which sets in motion the jurisdiction of the court. (b) Appropriation of property under the city charter is accomplished in a different mode than condemnation by a railroad corporation of a right of way. In the latter the first step is the filing of a plat. Hence the case of Fowler v. Railroad, 113 Mo. 456, is not authority in this case. Where filing of plat is required, omission to comply is fatal and is not cured by filing a petition. In re Rochester Railroad Co., 123 N.Y. 351, the converse is likewise true. Filing of a plat cannot cure the failure to file a petition in the form prescribed by the statute.

Oliver Senti, G. Wm. Senn and Theodore C. Eggers for respondent.

(1) The general code and rules of practice and procedure are observed in actions for the exercise of the power of eminent domain, in the absence of special statutory or charter provisions governing the particular instance. Railroad Co. v. Taylor, 43 Mo. 35; Railroad Co. v. Kellogg, 54 Mo. 334; Cory v. Railroad, 100 Mo. 147; St. Louis Ry. Co. v. Fowler, 113 Mo. 458; Leonard v. Sparks, 117 Mo. 103; St. Louis v. Lang, 131 Mo. 412; Leavenworth Bridge Co. v. Atchison, 137 Mo. 218; St. L. K. & N.W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 396; Cytron v. Transit Co., 205 Mo. 692; St. Louis v. Lawton, 189 Mo. 474; Bennett v. Marion, 106 Iowa 628. The particular description of each property and of the several estates and interests therein, if such allegation thereof in the petition, by interpretation of the city charter, be required, is yet not jurisdictional in character. St. Louis v. Franks, 78 Mo. 41; Cory v. Railroad, 100 Mo. 282; Thompson v. Ry. Co., 110 Mo. 147; Union Depot Co. v. Frederick, 117 Mo. 138; Kansas City v. Smart, 128 Mo. 272. (2) Jurisdictional matters, even though provided by the Constitution itself, may be waived by the owner. United States v. Reed, 56 Mo. 585. And such objections are waived by contesting the merits. Evans v. Haefner, 29 Mo. 141; Leonard v. Sparks, 117 Mo. 103; Union Depot Co. v. Frederick, 117 Mo. 138; Railroad Co. v. Kemper, 256 Mo. 279; Railroad Co. v. Railroad Co., 17 W.Va. 812; Bennett v. Marion, 106 Iowa 628; Drain. Dist. v. Dawson, 243 Ill. 175; Weeks-Thorne Co. v. Syracuse, 124 N.Y.S. 317.

Anderson, Gilbert & Wolfort, amici curiae.

(1) Relators would have the court construe the words "each instance which the city seeks to appropriate or damage" to mean each separate ownership in the description of the property condemned -- and not that instance refers to the condemnation proceeding. In condemnation proceedings instituted under this section "each instance" has been construed to mean the instant condemnation -- instance referring to the condemnation proceeding, not to separate parts of this proceeding. (2) It is a rule of law that the construction adopted by the parties will be adopted by the courts. This rule runs through ancient, medieval and modern jurisprudence. It is founded upon a characteristic of human nature that a human being is not going to adopt a construction contrary to his own interests unless that construction is the proper construction. Eisenstadt Mfg. Co. v. Bldg. Co., 233 S.W. 285; Hazeltine v. Ins. Co., 240 S.W. 815; Ismert-Hincke Co. v. Mfg. Co., 243 S.W. 408; Southern Ry. Co. v. Lbr. Co., 247 S.W. 219. In the case at bar all of the relators appeared before the commissioners, advised them in detail what property they owned, advised them in detail what they thought this improvement would benefit or damage their property. Having adopted this construction for the purpose of endeavoring to get as much money from the city as possible, they are in no position to come in and claim that another construction is correct, because they failed to convince the commissioners of the amount of their damage. (3) The description of a larger piece of property necessarily includes the description of the lesser. Except for unknown parties the petition alleges that defendants owned or claimed an interest in the property sought to be condemned. None of the relators filed a motion to make more definite, nor in any way attacked the pleading of the city, but proceeded to have their claims heard by the commssioners. Even after a motion to make definite is overruled, this objection is waived by proceeding further. A fortiori, it is waived if no motion to make definite is made.

OPINION

Atwood, J.

This is an original proceeding in prohibition to stay further action of the Circuit Court in the City of St. Louis in the condemnation of property along the south line of Olive Street in the city of St. Louis extending from Twelfth Street westwardly to Channing Avenue, a distance of more than twenty blocks, relators contending that the petition in the condemnation proceeding fails to state a cause of action. Respondent consented to the granting of a preliminary rule, waived issuance of the writ, made full return and pleaded that the petition in the condemnation suit was entirely sufficient under the provisions of the St. Louis Charter to fix the jurisdiction and sustain a judgment. Relators thereupon filed motion for judgment on the pleadings.

The petition here attacked was filed by the city of St. Louis through its City Counselor in the circuit court, city of St. Louis, on November 9, 1920. It contains an allegation that it is filed pursuant to the provisions of Ordinance No. 30751, passed by the Board of Aldermen upon the recommendation of the Board of Public Service for the widening of Olive Street, and directing the City Counselor to institute proceedings to condemn the property needed for such improvement, said ordinance having become effective May 10, 1920, and that the lines of Olive Street from Twelfth Street to Channing Avenue as the same is to be established, opened and widened are to be as follows, to-wit:

"The north line, from Twelfth Street to Lindell Avenue, to be coincident with the north line of Olive Street as heretofore laid out; the south line, from Twelfth Street to the west line of lot forty-nine, as heretofore laid out in city block number nineteen hundred fifty, said lot being about two hundred ninety-seven feet westwardly from the west line of Compton Avenue, to be distant forty feet southwardly from and parallel to the south line of Olive street as heretofore laid out, said distance being measured perpendicular to the said south line of Olive Street as now laid out; from the aforesaid west line of lot forty-nine in said city block number nineteen hundred fifty, the said south line of Olive Street shall run in a straight linear direction to a point distant one hundred feet southwardly from the southwest corner of...

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