City of St. Joseph v. Crowther

• Decision Date: 22 December 1897
• Citation: 43 S.W. 786,142 Mo. 155
• Parties: CITY OF ST. JOSEPH v. CROWTHER et al.
• Court: Missouri Supreme Court

43 S.W. 786

142 Mo. 155

CITY OF ST. JOSEPH v. CROWTHER et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1897.

MUNICIPAL CORPORATIONS — TAKING LAND FOR STREETS — CONSTITUTIONALITY OF STATUTE — ASSESSMENTS OF DAMAGES AND BENEFITS — APPEAL — REVIEW.

1. Act March 28, 1893, authorizing condemnation of private property in cities of the second class, requires (section 4) the commissioners to ascertain the actual value of the property without reference to the projected improvement and the actual damages, and to assess against the city, for the payment of such value and damages, the amount of the benefit to the public generally, and the balance of the benefits against the owners of all property within said limits benefited by said improvement. Section 10 provides that when the damages assessed are paid or tendered the improvement may proceed. Held, that the word "damages," in section 10, includes the damages to which the owner is entitled for the land taken, and hence such act does not allow the city to appropriate the land taken without paying or tendering to the owner its value, in violation of Const. 1875, art. 2, § 21.

2. Findings of fact by the commissioners and the circuit court on the hearing of exceptions to their report in a condemnation case are no more subject to review by the supreme court than in any other action at law, and, though the award may appear very inequitable, in the absence of some error in law in computing the damages and the compensation due the several owners, appearing in the record, the supreme court cannot interfere.

3. In taking land for a public street it is illegal for the commissioners to pay for it in benefits which they assess to the owner's remaining land, and charge him with benefits to the strip taken.

4. Where the opening of a street to and through an addition will greatly benefit all the property in it, it is illegal to assess only one cent benefit to each lot in it, because the proprietors of the addition, when they laid it out, gave the strip taken.

5. Assessments of damages and benefits, which show that the commissioners find that those whose land is actually taken for a street or other public use are benefited to the exact amount of its value or the damage done to the remainder, while those whose land lies in the same immediate benefit district are only benefited one cent, are illegal.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Proceedings by the city of St. Joseph for the extension of a street through the land of M. A. Crowther and others. From a judgment overruling exceptions filed by E. C. Zimmerman to the report of the commissioners, he appeals. Reversed and remanded.

This is an appeal from a judgment of the circuit court of Buchanan county in a condemnation proceeding prosecuted by the city of St. Joseph for the extension of Tenth street, in said city, through the lands of E. C. Zimmerman. The ordinance appropriating the property for public use and defining the benefit district, and the petition of the city praying for the appointment of commissioners to assess damages and benefits, are conceded to be sufficient. The appellant, Zimmerman, is the owner of a tract of land fronting 440 feet on Atchison street, with a depth varying from 76 feet on Eleventh street to about 228 feet on the west side. As will appear from the accompanying plat, Tenth street is open from the heart of the city of St. Joseph to the south line of city blocks 145 and 146 of South St. Joseph addition. By this proceeding it is proposed to extend Tenth street at a width of 60 feet through a tract known as the "Noble Tract" to the north line of Turner & Kirkpatrick's addition. The street is already dedicated and opened through the last-named addition. Beginning at the south line of said addition, it is proposed to extend it across the Hannibal & St. Joseph Railroad, through appellant's (Zimmerman's) tract, to Atchison street. It will necessitate the condemnation of a strip 60 feet wide and 228 feet 5 inches deep north and south, and will leave a strip of ground west of and fronting on said new extension of the street 228 feet 5 inches long by 80 feet deep.

Appellant filed his exceptions in the circuit court to the report of the commissioners, and, the circuit court having overruled the same, he appeals to this court.

Benj. Phillip, for appellant. Casteel & Haynes, for respondent.

GANTT, P. J. (after stating the facts).

He challenges the constitutionality of the act of the general assembly of Missouri approved March 28, 1893 (Laws Mo. 1893, p. 62), which provides for the condemnation of private property for public use in cities of the second class, and thus confers appellate jurisdiction upon this court. The errors assigned will be examined in their order.

1. As to the constitutionality of the act. It is insisted that it violates section 21, art. 2, of the constitution of Missouri of 1875, in this: that the said statute provides for the payment of damages which will accrue to the property not taken for public use, and which it is claimed must be assessed separately from the value of the land taken, and authorizes the city, upon the payment of the said damages to the property not taken, to appropriate the land taken without paying or tendering to the landowner the value of the land taken for the street or other public purposes. If this is the true construction of the statute, it must be held to violate the organic law. Section 4 of the act provides that the...