56 S.W. 298 (Mo. 1900), City of St. Louis v. Brown

Citation56 S.W. 298, 155 Mo. 545
Opinion JudgeVALLIANT, J.
AttorneyNoble & Shields, Boyle, Priest & Lehmann, Lon O. Hocker, Valle Reyburn, Bryan, Richards & Rozier, John H. Drabelle and Collins, Jamison & Chappell for appellants. B. Schnurmacher and Chas. Claflin Allen for respondent, City of St. Louis. Silas B. Jones for respondent Brown.
Judge PanelVALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., not sitting, having been of counsel.
Case DateMarch 30, 1900
CourtSupreme Court of Missouri

Page 298

56 S.W. 298 (Mo. 1900)

155 Mo. 545




Supreme Court of Missouri, First Division

March 30, 1900

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft, Judge.


Noble & Shields, Boyle, Priest & Lehmann, Lon O. Hocker, Valle Reyburn, Bryan, Richards & Rozier, John H. Drabelle and Collins, Jamison & Chappell for appellants.

(1) Commissioner Hemmelmann was not disinterested. Randolph Law Eminent Domain, secs. 320 and 324; Falmar v. Falmar, 68 Ala. 120; Railroad v. Townsend, 36 Hun. 630; In re Buffalo, etc., 32 Hun. 289; Michigan Air Line v. Barnes, 40 Mich. 383; Railroad v. Howard, 20 Mich. 18; Antony v. S. Kensington, 13 R. I. 129; Petition for Highway, etc., 48 N.Y. 433; Railroad v. Lynch, 23 Ill. 597; Powers v. Bears, 12 Wis. 213; Eples v. Nieman, 5 Ind. 459; Kundinger v. City Saginaw, 59 Mich. 355; 6 Am. & Eng. Ency. Law, Eminent Domain, 617; Lewis, Eminent Domain, sec. 405; State ex rel. v. Hocker, 25 Law R. A. 114; Cooley's Const. Lim., 649, 694, 695; 12 Am. & Eng. Ency. Law 352; Thompson & Merriam Juries, sec. 185; 7 Ency. Plead. and Prac., p. 559; Albany Street Opening, 6 Abs. Pr. (N. Y. Sup.) 273; 3 Black on Judgments, sec. 283. (2) The district established by the commissioners could not be changed, and a new district established without notice. City Ordinances, sec. 675, page 740, Revised Ordinances, City of St. Louis, 1892; Shaffner v. St. Louis, 36 Mo. 264; Lynn v. Clemens, 44 Mo. 540; Orrick School District v. Dorton, 125 Mo. 439; City of St. Louis v. Ranken, 96 Mo. 497. (3) The real estate owned by the city, including that leased to L. H. Bohle, being within the district established, should have been assessed benefits. City of Clinton v. Henry Co., 115 Mo. 557; Charter of St. Louis, article 6, sec. 5, and article 8, sec. 675, Revised Ordinances, 1892; Thornton v. City of Clinton, 50 S.W. 295; Kansas City v. Bean, 147 Mo. 259; In re Extension Church St., 49 Barb. 455; Chicago v. Baer, 41 Ill. 306; Scammon v. Chicago, 42 Ill. 192; Parmelee v. Chicago, 60 Ill. 267; Dyer v. Harrison, 63 Cal. 447; 15 Am. & Eng. Ency. of Law, pp. 1068, 1069; Brown v. Gates, 15 W.Va. 131; Birmingham v. Rumsey, 63 Ala. 352; Hart v. New Orleans, 12 F. 292; Davenport v. Ins. Co., 17 Iowa 276. (6) The principle adopted as to value and damages was erroneous, and the value allowed for the property taken was very excessive. Jamison v. Springfield, 53 Mo. 232; Springfield v. Schmook, 68 Mo. 394; Bridge Co. v. Ring, 58 Mo. 491; Doyle v. Kansas City, 113 Mo. 280; McReynolds v. Kansas City, 110 Mo. 484; Bowman v. Ross, 167 U.S. 548, 574; Dillon on Mun. Corp., secs. 632, 624; Randolph Law Eminent Domain, sec. 234, citing 98 U.S. 403; Lewis Eminent Domain, sec. 478, citing 58 Mo. 491. (7) The damages, outside of the value of the land taken, allowed to Mr. Brown, were illegally assessed. McMahan v. Railroad, 41 La. Am. 827. (a) The city charter allows only the value of the premises taken and the actual damage done to the property thereby. Cases under the Revised Statutes of the State are not applicable. Chicago v. Taylor, 125 U.S. 161. (b) The whole beneficial interest in land consists in the right to take the rents and profits therefrom. Coke Littleton, 45; Pollack v. Trust Co., 157 U.S. 581; 1 Jarman on Wills (5 Ed.), p. 597. (c) The value of his property allowed Brown included his right to rents and profits. City of Kansas v. Morris, 105 Mo. 510; Randolph Eminent Domain, sec. 241; Boaz v. Boston, 136 Mass. 390; Slattery v. St. Louis, 120 Mo. 187. (d) The action of the commissioners in allowing Brown a sum as rental value of his land for his loss prior to the judgment of condemnation was erroneous. Missouri Constitution, art. 2, sec. 21; Hickman v. City of Kansas, 120 Mo. 110. (e) From the time of judgment of condemnation interest accrues. Martin v. St. Louis, 139 Mo. 246; Plumb v. City of Kansas, 101 Mo. 525. (f) Liability of the city to Brown can not be affected by the length of time occupied by him in the erection of a new building. Bowles v. Boston, 136 Mass. 398; Lincoln v. Scranton, 162 Pa. St. 289; City of Kansas v. Morris, 105 Mo. 510. (g) The cost of removing Brown's house has nothing to do with the measure of damages. City of Kansas v. Morris, 105 Mo. 510; Williamson v. Com., 47 N.E. 115. (h) The fact that Brown removed his house in anticipation that the land would be taken constitutes no element of damage. Funk v. St. Louis, 122 Mo. 132; Bush v. McKeesport, 166 Pa. St. 57; Dillon on Mun. Corp., secs. 587D, 516 note. (i) Brown's removing his building was voluntary and the city can not be held to pay resulting damage. White v. City of Kansas, 22 Mo.App. 409; Simpson v. Kansas City, 111 Mo. 237; State ex rel. v. Hugg, 44 Mo. 116. (8) The charter and ordinances under which this proceeding was had violate the Fourteenth Amendment of the Constitution of the United States. Village of Norwood v. Baker, 172 U.S. 269; McCormick v. Patchen, 53 Mo. 33, 36.

B. Schnurmacher and Chas. Claflin Allen for respondent, City of St. Louis.

(1) Property belonging to the city of St. Louis regardless of its character or use, is not liable to special taxation or local assessments, which are but an exercise of the taxing power. 2 Dillon's Mun. Corp., secs. 576, 577; Elliott on Roads and Streets, pp. 403, 404; Clinton v. Henry County, 115 Mo. 557; Worcester Co. v. Worcester, 116 Mass. 193; Lowe v. Board, etc., 94 Ind. 553; Leonard v. Brooklyn, 71 N.Y. 498; Hartford v. Middle School District, 45 Conn. 462; Polk County Savings Bank v. State, 69 Iowa 24; Sioux City v. Sioux City School District, 55 Iowa 150. (2) The evidence shows that one piece of property belonging to the city, and embraced in the taxing district, is under lease to one Louis C. Bohle. The evidence also shows that the rent received by the lessee is paid into the general Municipal Revenue Fund. Since, therefore, the income derived from the property is devoted to general municipal purposes, it is immaterial that the city does not occupy the property directly. North St. Louis Gymnastic Society v. Hudson, Collector, 12 Mo.App. 342; s. c., 85 Mo. 32; People v. Brooklyn Assessors, 111 N.Y. 505.

Silas B. Jones for respondent Brown.

(1) In a condemnation cause a party has no right to complain of errors alleged to have been committed against any other person to the proceeding than himself; nor has an appellant a right to a reversal of the judgment of the lower court for alleged errors therein, which do not affect him. Kansas City v. Smart, 128 Mo. 293; St. Louis v. Lanigan, 97 Mo. 180; Mead v. Brown, 65 Mo. 554. Such proceeding is an action at law; and the appellate court will not interfere with the report of the commissioners therein by weighing the evidence on which it is founded; nor will the appellate court set aside the report of the commissioners, except where mistake, fraud, prejudice or passion manifest themselves in its rendition; and unless the appellate court is clearly satisfied that the commissioners have erred in the principles, upon which they have made their appraisal of values, damages and benefits, there is nothing for review, and the report will not be disturbed. Kansas City v. Bacon, 147 Mo. 279; St. Joseph v. Crowther, 142 Mo. 162; Kansas City v. Smart, 128 Mo. 297; St. Louis v. Lanigan, 97 Mo. 178; Kansas City v. Baird, 98 Mo. 218; Kansas City v. Butterfield, 89 Mo. 648; Railroad v. Dennis, 67 Mo. 440; Railroad v. Campbell, 62 Mo. 589; Railroad v. Almeroth, 62 Mo. 343; Railroad v. Richardson, 45 Mo. 468; Kansas City v. Street, 36 Mo.App. 666; Railroad v. Cox, 41 Mo.App. 502; Garland v. Smith, 127 Mo. 579; Railroad v. Ring, 58 Mo. 495; St. Joseph v. Geiwitz, 148 Mo. 216. (2) Where by a condemnation proceeding a part only of the citizen's property is taken, and thereby his business conducted upon his whole property is necessarily suspended and requires readjustment to the new order of things before it can be again successfully prosecuted, he is entitled to have the commissioners take into account and to compensate him for (a) the value of the naked land actually appropriated; (b) the loss of appliances in and arrangements of his property appropriate to his business; (c) the reasonable expense he is necessarily put to in the readjustment of his property remaining after the appropriation, so as to reasonably adapt it to the changed condition; and (d) the actual loss that he sustains by the necessary suspension of his business caused by the appropriation of a part of his property and the readjustment of the remainder to the new conditions. Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Schaubacher, 57 Mo. 582; Union Elevator Co. v. Railroad, 135 Mo. 353; Patterson v. Boston, 23 Pickering, 425; Railroad v. Capps, 72 Ill. 188; Railroad v. Hock, 118 Ill. 587; Sherwood v. Railroad, 21 Minn. 127; Commissioners v. Moesta, 91 Mich. 149; Railroad v. Napierville, 166 Ill. 87, 92, 93. (3) The city charter prescribes the qualifications of the commissioners to assess the values, damages and benefits, by providing for the appointment of three disinterested freeholders of property in the city for that purpose. Charter, art. 6, sec. 4. By disinterested freeholder is meant one whose pecuniary interest will not be directly affected by the establishment or refusal to establish the contemplated highway. Kundinger v. Saginaw, 59 Mich. 355; Railroad v. Barnes, 40 Mich. 385; State v. Cran, 36 N. J. L. 397; Wilbraham v. Commissioners, 11 Pickering, 322; Mills, Em. Dom. (2 Ed.), sec. 227. The interest which will disqualify one to act as commissioner must be more than that of a mere taxpayer in the municipality, which is a party to the cause, and which must be assessed with a part of the cost of the improvement. Minneapolis v. Wilkin, 30 Minn. 142; Phillips v. Commissioners, 122 Mass. 260...

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