City of St. Louis v. Nelson

• Decision Date: 15 November 1904
• Parties: CITY OF ST. LOUIS v. NELSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

83 S.W. 271

108 Mo. App. 210

CITY OF ST. LOUIS v. NELSON et al.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

MUNICIPAL CORPORATIONS — CHANGE OF GRADE OF STREETS — DAMAGES — AWARD — PERSONS ENTITLED TO — RIGHT OF APPEAL — LANDLORD AND TENANT — LEASE — STIPULATIONS.

1. A claimant to a fund in court deposited by a city in payment of damages awarded for a change in the grade of streets, who received the part which it was conceded he was entitled to, did not thereby forfeit his right to appeal from a judgment awarding the balance to another claimant.

2. An owner executed a lease, with privilege of renewal. The lease gave the lessee the right to remove improvements erected by him, on payment of the rent, which condition he did not comply with. The renewal lease stipulated that the lessee might remove the improvements erected during the renewal term. Held, that as the acceptance of the renewal lease was, in effect, a surrender of the possession to the owner, and a re-entry under the renewal lease, the improvements erected during the original term belonged to the owner, and the lessee was entitled only to remove the improvements erected during the renewal term 3. A lease for a definite term gave the lessee the right to remove improvements on conditions which were not complied with, and also the, right to a renewal lease. The renewal lease gave the lessee the right to remove improvements erected during the renewal term. The renewal lease was executed pending proceedings by the city in which the premises were situate for the award of damages for a change in the grade of streets. Damages were awarded for expenses in changes in the buildings erected during the original term, rendered necessary by the change of grade. Held, that the lessor was entitled to the sum so awarded, as against a tenant holding over after the expiration of the renewal term under a parol lease.

Appeal from St. Louis Circuit Court; Daniel D. Wood, Judge.

Proceedings by the city of St. Louis against Louis C. Nelson and others for the assessment of damages for a change in the grade of a street. The Ætna Ironworks and John C. Porter interpleaded, claiming the fund paid into court by the city in payment of the award made by the commissioners. From a judgment in favor of the Ætna Ironworks, John C. Porter appeals. Reversed.

This is a controversy over the rightful ownership of a balance of $2,070.40 remaining of the larger sum of $2,978.90 paid into court by the city of St. Louis as damages caused by change of grade of the intersecting thoroughfares, Papin and Twenty-First streets. In 1891 the city constructed a bridge on Twenty-First street over the railroad tracks, which necessitated a change of grade of adjacent streets, including those mentioned. In the progress of this proceeding, brought September, 1892, by the city, pursuant to statute (section 6109, Rev. St. 1899), to which the appellant and the McMurray-Judge Architectural Iron Company were made codefendants — the latter being succeeded in interest by respondent — the commissioners made report, in part, as follows: "The actual damages sustained by John C. Porter, Ætna Ironworks, lessee, or the owner of a lot of ground situated in city block No. 2282, having a front of forty feet six inches on Papin street by a depth of one hundred and twenty-seven feet six inches, being lot No. ____ in city block ____, bounded north by Papin street, east by lot 5, south by alley, and west by Twenty-First street, by reason of the change of grade of Twenty-First street, between Papin street and Chouteau avenue, and of Papin street between Twenty-First street and a point one hundred and fifty feet east of Twenty-First, to be the sum of $3,078.90." On March 9, 1903, a judgment was rendered, of which the following are the pertinent portions: "And the court doth now find that the actual damages sustained by John C. Porter, owner, Ætna Ironworks, lessee (the said John C. Porter having heretofore filed a remittitur in the sum of $100), of a lot of ground situated in city block 2282, and described in said commissioners' report, to be the sum of $2,978.90; and the actual damages sustained by the Ætna Ironworks, owner of a lot of ground in city block 2282, and described in No. 2 of said commissioners' report, to be the sum of $15,660.20; and the actual damages of Consolidated Steel & Wire Company, owner of a lot of ground in block 2283, described in No. 3 of said commissioners' report, to be $1,000." Here follow like awards in favor of 15 other persons or groups of persons, and then the judgment proceeds as follows: "Which said sums the court doth allow said parties, respectively, as their damages; and the court doth order, adjudge, and decree that the city of St. Louis pay said sums to said parties as aforesaid within six months from the date hereof, with interest thereon from the date of this decree at the rate of six per cent. per annum. The court doth further order, adjudge, and decree that all the costs of this proceeding shall be taxed against, and paid by, the city of St. Louis." In July following the city paid the amount above mentioned into court by authority of the order following: "It is ordered by the court that the city of St. Louis be granted leave to pay into court, for the use and benefit of the following parties, the following amounts in the above-named case, to change the grade of Twenty-First street under Ordinances No. 15,119 and 16,465, to wit: John C. Porter, Ætna Ironworks, lessee, $2,978.90; Missouri Malleable Iron Company, B. Roth Tool F. & Machinery Company, lessee, $8,580; Mary E. and Thomas J. Walsh and Margaret M. Kennedy, $400; Linmar Realty Company or Margaret Walsh, $2,910; Regina Walsh, Linmar Realty Company, Schwarzchild & Sulzberger, $210." Subsequently the parties hereto interpleaded, the appellant setting forth in his claim that he was sole owner of the lot at date of the judgment, and no other party had any interest therein, except that respondent was tenant by verbal letting, running from month to month, and therefore he was entitled to the full amount. The respondent, in its claim, alleged that when this proceeding was begun, in 1893, the McMurray-Judge Architectural Ironworks Company was one of the original defendants, and held a lease of the property then vacant for 10 years from January 1, 1882, which lease contained right of renewal for a term of 10 years, and on July 1, 1892, appellant had granted a renewal of the first lease to the same lessee for nine years and six months, the improvements on the lot to March 6, 1893, having been erected by above company, and since by its successor, respondent, which had acquired its interest in the lot and improvements in manner specified; that the award of $2,978.90 was made up of damages to the improvements, $2,070.40, and to the ground $908.50, the items of which were particularized; that the second lease had expired the 1st of January, 1902, and respondent was holding over as tenant...