32 S.W.2d 63 (Mo. 1930), Blackwell v. City of Lee's Summit

Citation32 S.W.2d 63, 326 Mo. 491
Opinion JudgeELLISON
Party NameSallie M. Blackwell et al., Appellants, v. City of Lee's Summit et al. John L. Leibweber et al., Appellants, v. City of Lee's Summit et al
AttorneyE. C. Hamilton and W. H. Carr for appellants. E. S. Bennett and Clarence S. Palmer for respondents.
Judge PanelEllison, C. Seddon, C., concurs. Finding no error in the record the judgment of the circuit court is affirmed. Seddon, C., concurs.
Case DateOctober 14, 1930
CourtSupreme Court of Missouri

Page 63

32 S.W.2d 63 (Mo. 1930)

326 Mo. 491

Sallie M. Blackwell et al., Appellants,

v.

City of Lee's Summit et al. John L. Leibweber et al., Appellants,

v.

City of Lee's Summit et al

Supreme Court of Missouri

October 14, 1930

Appeal from Jackson Circuit Court; Hon. W. O. Thomas, Special Judge.

Affirmed.

E. C. Hamilton and W. H. Carr for appellants.

(1) The course pursued by the defendants and upheld by the trial court is contrary to and directly in the face of Section 21, Article 2, Constitution of Missouri. Kirksville v. Ferguson, 262 Mo. 668; St. Louis v. Hill, 116 Mo. 536; Hickman v. Kansas City, 120 Mo. 120; Kirksville ex rel. v. Coleman, 103 Mo.App. 215; Davis v. Ry. Co., 119 Mo. 187. (2) The defendants failed to comply with Sections 8530, 8676, 8679, R. S. 1919, which compliance was necessary to confer jurisdiction. City of Tarkio v. Clark, 186 Mo. 298. (3) The proceedings looking toward the improvements should have been based on Section 8511, instead of Section 8510. Sec. 8510, R. S. 1919, and amendments thereof, Laws 1921, p. 516, Laws 1923, p. 265; Sec. 8511, R. S. 1919. (4) The remonstrances filed were sufficient to deprive the defendants of jurisdiction to proceed with the improvements. Hoover v. Newton, 193 S.W. 895; Knopfi v. Roofing & Paving Co., 92 Mo.App. 287; Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 801; Rhodes v. Springfield, 195 Mo.App. 182; Sedalia ex rel. v. Scott, 104 Mo.App. 608. (5) Resolution 3 and Ordinance 128 based thereon, are void, in that they contemplate that the paving of the intersection of Third Street and Douglas Street shall be paid for by the taxation of property in the next adjoining block east, to-wit, the unpaved block between Douglas and Green streets. Sec. 8504, R. S. 1919; State ex rel. Meek v. City of Chillicothe, 237 Mo. 495; Boonville Mercantile Co. v. Hogan, 205 Mo.App. 594.

E. S. Bennett and Clarence S. Palmer for respondents.

(1) Where the title of a landowner is not affected, it is not necessary that damages for a change of grade in constructing a city improvement shall be paid prior to the doing of the work. The land owner has a right of action against the city. Clemens v. Life Ins. Co., 184 Mo. 46; McGrew v. Paving Co., 247 Mo. 549; Lemon v. Drainage District, 310 Mo. 179. (2) Sec. 8530, R. S. 1919, applies only to condemnation cases affecting the title to the property. Secs. 8676, 8679, R. S. 1919, apply only where the city or landowner has asked that the damages be ascertained as to some specific property. The record shows no such application and the petitions in this case do not allege damages to any specific property. The validity of the contracts is not affected by a failure to ascertain possible damages prior to the construction of the work. The record shows no material change of grade. McGrew v. Paving Co., 247 Mo. 549; Hoffman v. Houck, 282 S.W. 448; McQuiddy v. Smith, 67 Mo.App. 205. (3) Sec. 8511, R. S. 1919, does not apply where a part of a street is to be paved, where such part and the parts of the street abutting at both ends of the proposed pavement are in substantially the same condition. That section is intended only to provide for filling a gap between two sections of a street already paved, or to repave an old and worn pavement which is met at both ends by a pavement of superior quality. The construction of the law asked by appellants would very largely take away the right of the landowners to protest, and would be unreasonable and oppressive. It should certainly not be held to have been the legislative intent to allow the board of aldermen, after a street has been once paved, to select any part less than 1200 feet in length and by leaving a little pavement undisturbed at the ends, to force new pavement without regard to the wishes of the landowners. The courts will not give an unreasonable construction to statutes. 36 Cyc. 1110, 1111; Perry v. Strawbridge, 209 Mo. 621; Thompson v. State, 20 Ala. 62; Darlington Lumber Co. v. Railway Co., 216 Mo. 658; Hobein v. Murphy, 20 Mo. 448; Walton v. Harris, 73 Mo. 441; Kane v. Railway Co., 112 Mo. 34. (4) There never was a majority protest on Douglas Street: 13 landowners, and only 6 ever signed the protest. On Third Street there were at least 26 landowners -- probably 34 -- 17 originally signed the protest, but 5 withdrew within the ten days, leaving but 12 signatures on the protest, which is a minority. Sedalia ex rel. v. Montgomery, 127 S.W. 50, 227 Mo. 1; Hinerman v. Williams, 205 Mo.App. 364; City Trust Co. v. Crockett, 309 Mo. 683; Kitchen v. City of Clinton, 8 S.W.2d 602. (5) As the cost of the work of paving the intersection of Third Street and Douglas Street has not yet been apportioned, the consideration of the method of apportionment is immaterial at the present time. The resolutions and the ordinances require the apportionment to be made according to law; the law requires the east half of the intersection to be apportioned against the land abutting on Third Street between Douglas Street and Green Street. Sec. 8504, R. S. 1919; City ex rel. v. McMichael, 221 Mo.App. 917.

Ellison, C. Seddon, C., concurs.

OPINION

ELLISON

Page 64

[326 Mo. 494] These two suits, instituted by abutting property owners, are to enjoin the city of Lee's Summit and the defendant contractor from constructing two certain paving improvements on Third Street and Douglas Street, respectively, in accordance with the resolutions, ordinances and contracts severally providing therefor. Lee's Summit is a city of the fourth class. The causes were consolidated for trial and heard by the Hon. W. O. Thomas, sitting as [326 Mo. 495] special judge. He found the issues against the plaintiffs and dismissed their bills. They have appealed.

The evidence is hard to understand. Many times witnesses were questioned concerning blue prints and profiles which were not introduced in evidence and preserved in the record. We shall attempt to outline the general facts and later when necessary will give the evidence in greater detail as it bears on each assignment of error.

Third Street runs east and west and intersects Douglas Street which runs north and south. The portion of these streets proposed to be improved, or most of it, lies in the business part of town. The proceedings on each street were inaugurated in March, 1927, by the adoption of separate paving resolutions, under Section 8510, Revised Statutes 1919, Laws 1921, p. 516, Laws 1923, p. 264. The plans for both projects call for vibrated concrete pavement 42 feet wide and 6 inches thick, and for bringing the streets to established grade, excavating for the necessary subgrade, curbing, guttering and draining, the curbing to extend six inches above the gutter, and the pavement to be crowned so that the center will be elevated about nine inches above the gutter. The curbing will come flush against the sidewalks or sidewalk line. In other words there will be no parkway space or grass plot between the sidewalks and the curbing, but the two are entirely separate.

Page 65

The distance to be improved on Third Street is 862 feet running east to and including the whole area of the intersection with Douglas Street. On the latter street the paving is to...

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  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Marzo 1951
    ...243 S.W. 346; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Cou......
  • 240 S.W.2d 703 (Mo. 1951), 42206, State ex rel. Dennis v. Williams
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 11 Junio 1951
    ...of consequential damages. Sec. 88.090, R.S. 1949; Markowitz v. Kansas City, 125 Mo. 485, 28 S.W. 642; Bakewell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63. (2) A jury trial in eminent domain proceeding on exception to the award is granted by Statute. Sec. 523.060, R.S. 1949. (3) Char......
  • 139 S.W.2d 955 (Mo. 1940), 35933, Guaranty Savings & Loan Ass'n v. City of Springfield
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 7 Mayo 1940
    ...of the property actually taken and the diminished value of the remainder; any other damages are consequential. Blackwell v. Lees Summit, 32 S.W.2d 66. (e) Within the meaning of this section, the term "owner" includes any person who has an interest in the property that will be affe......
  • 237 S.W.2d 118 (Mo. 1951), 42218, In re East Park Dist. of Kansas City
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Febrero 1951
    ...even after the damage has been done. Markowitz v. Kansas City, 125 Mo. 485, 28 SW. 642, 46 A.S.R. 498; Blackwell v. City of Lee's Summit, 326 Mo. 491, 498-9 (2, 3), 32 S.W.2d 63, 66 (3, 4). [361 Mo. 834] Appellants invoke four decisions 4 of this court. None of them involved the issue prese......
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13 cases
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Marzo 1951
    ...243 S.W. 346; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Cou......
  • 240 S.W.2d 703 (Mo. 1951), 42206, State ex rel. Dennis v. Williams
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 11 Junio 1951
    ...of consequential damages. Sec. 88.090, R.S. 1949; Markowitz v. Kansas City, 125 Mo. 485, 28 S.W. 642; Bakewell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63. (2) A jury trial in eminent domain proceeding on exception to the award is granted by Statute. Sec. 523.060, R.S. 1949. (3) Char......
  • 139 S.W.2d 955 (Mo. 1940), 35933, Guaranty Savings & Loan Ass'n v. City of Springfield
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 7 Mayo 1940
    ...of the property actually taken and the diminished value of the remainder; any other damages are consequential. Blackwell v. Lees Summit, 32 S.W.2d 66. (e) Within the meaning of this section, the term "owner" includes any person who has an interest in the property that will be affe......
  • 237 S.W.2d 118 (Mo. 1951), 42218, In re East Park Dist. of Kansas City
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 12 Febrero 1951
    ...even after the damage has been done. Markowitz v. Kansas City, 125 Mo. 485, 28 SW. 642, 46 A.S.R. 498; Blackwell v. City of Lee's Summit, 326 Mo. 491, 498-9 (2, 3), 32 S.W.2d 63, 66 (3, 4). [361 Mo. 834] Appellants invoke four decisions 4 of this court. None of them involved the issue prese......
  • Request a trial to view additional results