Bryant v. Kansas City and Jaudon
| Decision Date | 07 July 1921 |
| Citation | 232 S.W. 1080,209 Mo.App. 210 |
| Parties | CARL H. BRYANT, et al., Appellants, v. KANSAS CITY and BEN JAUDON, Treasurer of Kansas City, Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.
AFFIRMED.
Judgment affirmed.
Bruce Barnett for appellants.
E. M Harber, F. M. Hayward and Benj. M. Powers for respondents.
This is a suit in equity seeking to enjoin the City of Kansas City, Missouri, and its treasurer from collecting certain benefit assessments levied in a condemnation proceeding by said city for public use for trafficway, boulevard and parkway purposes.
Plaintiff brought suit in the court below at Independence, Jackson county, to enjoin Kansas City and its treasurer from collecting certain benefit assessments levied in a condemnation case which previously had been tried in the circuit court of Jackson county, at Kansas City being entitled: "In the matter of the condemnation of land in the North Park District of Kansas City, Missouri, for public use for trafficway, boulevard and parkway purposes, under ordinance of Kansas City, Mo., commonly known as the
In the condemnation proceeding certain lands were taken for the widening of Locust street and for a new roadway through certain tracts of land, the whole to form a broad roadway from Sixth street and Grand avenue to Third and Cherry streets in Kansas City. In certain cases the new roadway would cut a portion of a tract of land, taking part of it for the city's use and leaving the rest in the ownership of the title holder. In making up its verdict the jury awarded the owner the value of the part of his tract which was taken, and in addition thereto, such amount as they deemed he was damaged by reason of the tract being left smaller and, in some cases irregular in shape.
The jury made its award in three paragraphs: One stating the description of the part of the tract actually to be taken and the value thereof; another awarding damages for the part not taken, by reason of taking the part that was taken. There were twenty-eight of the tracts damaged but not taken. All parties whose land was either taken or damaged entered their appearance in the condemnation case, and all but two had accepted from the city the compensation and damages awarded them, and had executed proper receipts therefor. The record shows that in the condemnation cases No. 115,770 appeals were taken to the Supreme Court and thereafter were dismissed, as shown by the mandate of said court.
The order for publication addressed "to all persons whom it may concern" set out the ordinance in full, describing the property to be taken, and also describing the benefit district to be assessed. The property of plaintiffs herein was shown to be in said benefit district so described. There was a plat filed at the time of the commencement of the condemnation case which included the property taken and also the tracts which the jury afterwards found were damaged. After the conclusion of the condemnation case, plaintiffs brought this suit. Judgment was rendered in favor of defendants.
Plaintiffs aver that certain void and pretended benefit assessments against their real estate described in their petition constitute a cloud upon their title, and seek to have such assessments declared not to constitute a lien upon said property.
The charter of the city of Kansas City provides as a procedure in condemnation cases similiar to the one involved herein, that the park Board adopt a resolution recommending to the Common Council that an ordinance be passed for the taking of lands for such public purposes; the Common Council passes the ordinance. The charter requires that such ordinance shall describe the land to be taken or damaged, and shall define the district within which parcels of land shall be deemed benefitted by the establishment of such public improvements.
The city then files a certified copy of such ordinance in the circuit court, and this certified copy is the petition in ordinary pleadings.
Under the direction of the court a jury is impanelled for the purpose of determining the value of the property taken and the amount of damage to property not taken, and an order of publication is made by the court. Trial is had on the issues of values of the property to be taken, and the extent of damage to property not taken, and the amount of benefits deemed by the jury to accrue to the various parcels of land within the benefit district. By such judgment a tax becomes imposed to the extent of the benefit assessed by the verdict upon each parcel of real estate within the benefit district to the extent of the amount of the benefit as found by the verdict.
On July 3, 1917, the Board of Park commissioners of Kansas City passed a resolution designating the trafficway above referred to under article 13 of the Charter, and describing by metes and bounds certain lands to be taken for such purpose. Thereafter the common council passed an ordinance No. 30176, which was approved July 19, 1917, in accordance with the resolution of the Park Board, declaring that a trafficway and boulevard be opened and established as herein recommended, and that special assessments against the whole of the North Park District, as defined in section 7, of article 13 of the Charter, be made.
A verdict was rendered in and by which ninety-seven separate parcels of land taken were assessed as to value in the total sum of $ 279,677; and twenty-eight tracts were described as property not actually taken but damaged to the extent of $ 27,335 making an aggregate total of $ 307,012, for values of land taken and damages to land not taken by the proceedings; and by the verdict a very large number of parcels of land in the North Park District were found and determined by the verdict to be benefited to the extent set out therein. The amount of particular benefits assessed against the real estate of of plaintiff herein was $ 1913.60.
The appeal is based upon the contention, first, that the Charter of the defendant city requires that the ordinance shall describe the property to be taken or damaged; and that the ordinance covering the lands in the case at bar did not describe any property damaged but not taken, and that notwithstanding such fact damages were declared by the verdict as to property not taken to the extent of $ 27,335; and in the judgment of the court upon said verdict there is included in the amount of the benefit assessments against the various parcels of real estate in the said North Park District, the unwarranted and unauthorized sum of $ 27,355 on account of property not taken but damaged, and that the benefit assessments are null and void.
The verdict of the jury covers descriptions of many parcels of land, but for a basis of the contentions of counsel for plaintiffs in this case, we need quote only the following:
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