Shaffner v. City of St. Louis

• Decision Date: 31 October 1860
• Citation: 31 Mo. 264
• Parties: SHAFFNER, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

31 Mo. 264

SHAFFNER, Respondent,

v.CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. In proceedings under the amended charter of the city of St. Louis, of February 23, 1853, (Rev. Ord. 1856, p. 157,) the city is made primarily liable for only the damages assessed on account of the benefit that will result from the improvement to the public generally, and the city can not be held primarily so liable for the amount of benefits assessed against individuals.

2. Proceedings under such statute to deprive an individual of his property without his consent should be conducted in strict conformity to the requirements of the act which authorizes them, and if not so conducted they are null and void.

Appeal from St. Louis Circuit Court.

The facts will appear in the opinion of the court. These are the instructions asked by the appellant, and refused in the court below: “1. That the proceedings under which it is alleged that the property of the plaintiff was condemned for public use is null and void, and the plaintiff can not recover in this action on account thereof. 2. That under the charter of the city relating to the opening and improving streets, the city is only liable to the party whose property is condemned for public use to the extent of the amount assessed against the city on account of the value to the public generally of the proposed improvement, together with the amount collected by the city from the owners of the property against whom benefits have been assessed. 3. That in no event can the plaintiff recover in this action over and above the amount assessed by the jury as the value of the improvement to the public generally, together with the amounts actually paid to the city by those assessed with benefits. 4. That by the amended city charter of St. Louis, approved February 23, 1853, it is provided that the mayor shall appoint a day for empannelling a jury and ascertaining the damages, at least six days' notice of which shall be given to the person whose property is proposed to be taken; and if any of the owners are unknown, can not be found by the marshal of the city, or are absent from the city, publication thereof shall be made in at least two of the city daily newspapers for at least four weeks before the day appointed, notifying all owners and others interested in the property proposed to be taken and in the improvements to be made, that on the day therein named the mayor will cause the property therein described to be condemned for public use, and the court is asked to declare as the law of this case, that if from the evidence no such notice was given to any of the parties interested in said proceeding, then neither the city nor the public have acquired any right to the property of the plaintiff, and the plaintiff can not recover in this action. 5. That if it appear from the evidence that no notice whatever of the empannelling of the jury was given by publication or otherwise to the person or persons assessed by the jury with benefits, then the judgment rendered by the mayor against such person or persons is null and void, and the city has no legal right to collect the same, and the plaintiff is not entitled to recover on account of the same. 6. That by the charter of the city of St. Louis, regulating the proceedings in regard to the opening of the street which is the subject matter of controversy in this suit, the city is made the trustee to collect and pay over to plaintiff the amounts assessed against persons for benefits, and the plaintiff can not recover in this action for money not collected or received by the city.

W. V. N. Bay, (city counsellor,) for appellant.

I. In proceedings to take private property for public use under the provisions of positive law, every requisite of the statute must be complied with, and should appear on the face of the proceedings under which the property is attempted to be taken. No right or title to the property can be acquired except by a strict observance of the statutory provisions, and an omission of the statute requisite is fatal. (Angell on Highways, 188, 167; Hebert v. Frisbie, 5 Conn. 592; Parker v. Rule's Lessee, 9 Cranch, 64; Metcalf v. Gillet, 5 Conn. 400.) Thus when the statute provided that real estate taken by execution should be appraised by indifferent freeholders of the town where the lands lie, it has been held that when one of the appraisers was not indifferent or did not reside in the town where the lands lay, the appraisement was void, notwithstanding they were selected and agreed upon by the parties with a full knowledge of such disqualification. The agreement of the parties not being sufficient to make that good which the law maketh void. (Mitchell v. Kirtland, 7 Conn. 229; Metcalf v. Gilbert, 5 Conn. 400, 403; Chapman v. Griffin, 1 Root, 191; Co. Litt. 51, b.)

II. Ordinance 1752 fixed the line of South Twelfth street from Gratiot to Chouteau avenue, and ordinance 3548 directed the mayor to proceed and open the street in accordance with ordinance 1752. The mayor gave notice under the city charter by publication that he would empannel a jury to assess damages and benefits on the 24th of October, 1856. The record shows that the mayor did not proceed or attempt to empannel a jury until the 6th of November, 1856. It is contended by appellant that the omission to empannel the jury on the day named in the notice is fatal, and renders all proceedings had thereafter null and void. He should at least have commenced empannelling the jury on the day specified in the notice.

III. The jury empannelled on the 6th of November made no verdict, but recommended to the mayor that it was advisable to make a change in the line of the street; thereupon the mayor, on the 10th of November, 1856, discharged the jury, sine die, and reported their recommendation to the council. It is insisted by appellant that upon the discharge of the jury they were functus officio, and the mayor had no power or authority to recall and empannel them again on a subsequent day.

IV. Ordinance 3752, approved December 5, 1856, adopted the change proposed by the jury and repealed ordinance 3548, under which the mayor gave notice. As no notice whatever, by publication or otherwise, was given any person of the intention of the mayor to empannel a jury under ordinance 3752, we insist that all proceedings had by the mayor thereafter in relation to the opening of South Twelfth street were null and void and could not operate to condemn the property of Shaffner, or affect in any degree his interest or title in the property.

V. If the proceedings are null and void, then we insist that neither the city nor the public at large acquired the easement or any right whatever in the property of Shaffner, and consequently Shaffner cannot maintain an action against the city for the property.

VI. The city never took possession of the property, but the possession remained in Shaffner, he (Shaffner) receiving the rents, issues and profits. It is submitted that under the charter of the city no cause of action could accrue until the city took possession, even if the proceedings under the attempted condemnation had been valid.

VII. The parties to be assessed with benefits as well as the parties whose property is to be taken have a right to be heard before the jury and to introduce any evidence touching their interests. It is contended that the omission to make the publication provided by charter was calculated to deprive them of this right, and, in the absence of any testimony showing that they were advised of the proceeding, the court will presume that it was conducted without their knowledge. (Angell on Highways, p. 77.)

VIII. Upon the condemnation of private property for a street, the public only require the easement or right of way. The owner retains the fee and all rights of property not incompatible with the public enjoyment, and when the highway is abandoned, recovers his original unencumbered dominion. (Angell on Highways, ch. 7, p. 281; Perley v. Chandler, 6 Mass. 454; Jackson v. Hathaway, 15 Johns. 447; Caslergan v. Van Brundt, 2 Johns. 357; Gednay v. Earl, 12 Wend. 98; Willoughby v. Jenks, 20 Wend. 96; Peck v. Smith, 1 Conn. 103.) This common law doctrine is not infringed upon by the charter of St. Louis. The soil and freehold remain in the owner of the ground, and the public at large acquire simply the easement. The city in her corporate capacity acquires no right except to improve and keep the street in repair, and to prevent and remove all encroachments on the same. She is taxed, as well as the owners of the property benefited, for the value of the easement.

IX. If the plaintiff has any cause of action, he can only recover to the extent of the amount awarded by the verdict of the jury in the mayor's court, to be paid by the city as the value of the improvement to the public generally, in addition to the amount that the city may have collected from persons assessed with benefits. The record shows that the assessed value of the property of Shaffner, taken for the improvement, was $16,830. To pay this amount the jury assessed against the city the sum of...