Kansas City v. Hyde

Citation96 S.W. 201,196 Mo. 498
Decision Date30 May 1906
Docket Number1
PartiesKANSAS CITY v. HYDE, Appellant
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Reversed and remanded.

(1) The second point in appellant's brief, to-wit, that this proceeding is to take private property for private use, is not a question in the record herein. No pleadings were filed herein by appellant, or any other person, alleging any proposed private use of the lands to be taken herein. Nor was this issue tendered in the case otherwise than as a question for the jury. What did the jury have to do with this question? The only answer is, nothing. The sole province of the jury in this case was to try the question of damages and benefits herein. The use or necessity of the public for the proposed street not being proper matters for the jury to consider or determine, the circuit court properly refused to allow this question to be submitted to the jury. City of Savannah v. Hancock, 91 Mo. 54; Kansas City v. Baird, 98 Mo. 215; Cape Girardeau v. Houck, 129 Mo. 618; Kansas City v. Bacon, 157 Mo. 468. The city ordinance showing on its face that the lands taken herein are for public use, to-wit, for a public street for the common use of any and every one, is conclusive against appellant's contention that this is a proceeding to take private property for private use. Kansas City v. Baird, 98 Mo. 218; Cape Girardeau v. Houck, 129 Mo. 618; St. Louis v. Brown, 155 Mo. 545; Railroad v. Coal & Mining Co., 161 Mo. 288. (2) The first point made in appellant's brief, to-wit, that the ordinance was unreasonable and operates to deprive appellant of his property without just compensation, is not well taken. The Kansas City charter commits to the common council of the city alone the determination of the width of a proposed street and the size of the benefit district to be charged to pay therefor. Charter, 1889, art. 7, secs. 1 and 2. The court may defeat this or any other city ordinance for unreasonableness, but the court cannot defeat this proceeding because it may think the proposed street ought to be wider than the ordinance prescribes, or because the court may think that the ordinance should have prescribed a larger benefit district. Kansas City v. Morton, 117 Mo. 446. The verdict is conclusive here as to both damages and benefits because it is supported (a) by testimony; (b) by the judgment of the jury; and (c) by the approval of the circuit court. Kansas City v. Smart, 128 Mo. 296; St. Louis v. Abeln, 170 Mo. 324; Kansas City v. Railroad, 84 Mo. 410; Kansas City v. Baird, 98 Mo. 218; Kansas City v. Bacon, 147 Mo. 279.

OPINION

VALLIANT, J.

In re Twenty-first street. This is a proceeding under an ordinance of the city to extend Twenty-first street into certain property of the defendant Hyde, and for that purpose to assess his damages for the property to be taken or damaged, and to assess the benefits over a district prescribed by the ordinance in which district is included remaining property of defendant. The jury assessed the defendant's damages at $ 5,000 and his benefits at $ 2,577.10, and from the judgment of condemnation that followed on those assessments the defendant has appealed.

Defendant Hyde owns a tract of land nearly square in shape, containing about 60,000 square feet, bounded on the east by Oak street twenty feet wide, west by an alley eighteen feet wide, and on the south by the right of way of the Kansas City Belt railway. Twenty-first street, sixty feet wide, coming from the west, terminates on the west line of defendant's property, its south line being nearly coincident with the south line of defendant's property.

The following diagram gives a general idea of the location.

[SEE ILLUSTRATION IN ORIGINAL]

Twenty-first street, as will appear from the diagram, does not extend across defendant's property, but it ends on the west against defendant's west line, and begins again going east at defendant's east line, and not then on a line with its own west end, but considerably north of it.

The ordinance in question does not aim to unite the two disconnected ends of Twenty-first street, nor to carry the street entirely through defendant's property, but to terminate it in defendant's property at a point ten feet west of his east line; nor does the ordinance aim to carry the street to its full width even as far as it purposes to go, but to the width only of thirty feet. Another feature of the route marked out by the ordinance is that, after going sixty-eight feet along the south line of defendant's land, it changes course to the northeast to the terminus named and that, too, at an angle which, even if the course were extended to defendant's east line, would not connect it with that end of Twenty-first street.

Appellant contends that it appears on the face of the ordinance, when applied to the physical facts above stated, that the public has no interest in this proceeding, that the extension of Twenty-first street as proposed would simply create a cul de sac in defendant's property which would be of use to no one, and that we think is correct. But to meet that objection the city undertook to prove that there was another fact to be considered which would show that this extension was for a public use and would serve the public, namely, that there was pending at the same time and in the same court another proceeding the purpose of which was to widen Oak street and bring it down to connect with this extension of Twenty-first street and to the right of way of the Kansas City Belt Railway Company. But on the objection of defendant the testimony offered by the city on that point was excluded. The idea advanced was that this case would have to stand or fall by its own strength and could not be helped out by another proceeding, the result of which was only problematical.

We have now under consideration the appeal of this same defendant in the Oak street case, both cases having been submitted for our judgment at the same time, and in that case to meet the objection of the defendant, that the widening and extending of Oak street would only carry it to an unprofitable end, the city offered to prove that it was at the same time moving to extend Twenty-first street so as to connect it with the widened and extended Oak street, but on like objection by the defendant that evidence was excluded. In spite of the ruling of the court, however, the evidence in its full force got to the jury and must have had its effect, because the jury could not, with reason, have assessed any benefits in this case if there was no purpose shown to connect the two streets.

The court erred in excluding that evidence. Assuming that it was to the public interest that these two streets should be connected in the manner that they would be if both of those ordinances were carried into effect and that the common council so determined, yet, since proceedings to widen or extend both streets cannot be embraced in one suit, it would be impossible to carry the scheme into effect, if each proceeding had to rest alone on its own facts without taking into account the purpose of the other. If each proceeding depends for its success on a condition that does not already exist, but that can be brought about only by a successful prosecution of the other, and if neither can proceed until the other is finished, then the one defeats the other and both must fail. That cannot be the law. The danger suggested in the possible failure of the other proceeding can be avoided without any difficulty by the court in its control of its judgment; it can withhold its final judgment or its ruling on a motion for a new trial or otherwise suspend final action until judgments are reached in both cases.

Nothing that it is necessary for the court to know in order to reach a correct conclusion in a given case can be said to be irrelevant or immaterial.

If the opening or extending of a particular proposed street is but a part of a general scheme, the court should know what the scheme is in order to appreciate the value of the particular street in question.

That scheme may be shown by contemporaneous ordinances if it has been put into that record form, or it may be shown by the best evidence of which the fact is susceptible, if it has not been made a matter of record.

Whilst the passing of an ordinance to establish widen, or extend a street is the exercise by the city of a delegated governmental power, legislative in its character and, therefore, not subject to judicial direction ( Albright v. Fisher, 164 Mo. 56, 64 S.W. 106; State ex rel. v. Gates, 190 Mo. 540, 89 S.W. 881), yet after the ordinance has become an accomplished fact, if attempt is made to apply it to the injury of the property rights of a citizen, he may, if he can, show that its passage was obtained by fraud or other unlawful means or for an...

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2 cases
  • North Little Rock v. Rose
    • United States
    • Supreme Court of Arkansas
    • October 14, 1918
    ...S.W. 581; 132 Id. 184-6; 146 P. 950-4; 133 Id. 754. 3. The motives of the council can be inquired into. 2 Dillon on Mun. Corp., § 580; 96 S.W. 201-5; 195 U.S. 223; Id. 356; Horr & Bemis on Mun. Ord., § 127; 151 F. 879, 882, 892; 107 Mo. 198, 203; 28 N.E. 812, 814; 18 Oh. St. 262. 4. The ord......
  • City of St. Louis v. Bell Place Realty Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 23, 1914
    ......723; Smith v. Waters, 25. Ind. 397; Re Enston's Will, 113 N.Y. 174. The ordinance. being void, the remedy is dismissal of the case. Kansas. City v. Hyde, 196 Mo. 498. (3) Jurisdiction to assess. appellants' property never attached because the. publication of notice required by ......

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