Bueche v. Kansas City

• Decision Date: 12 February 1973
• Docket Number: No. 57854,57854
• Citation: 492 S.W.2d 835
• Parties: Ida Laura BUECHE, Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent.
• Court: Missouri Supreme Court

Page 835

492 S.W.2d 835

Ida Laura BUECHE, Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent.

No. 57854.

Supreme Court of Missouri, En Banc.

Feb. 12, 1973.

Rehearing Denied April 9, 1973.

James W. Jeans, Kansas City, for appellant.

Aaron A. Wilson, City Counselor, James A. Burr, Associate City Counselor, Kansas City, for respondent.

FINCH, Chief Justice.

Kansas City, Missouri, a constitutional charter city, brought suit to condemn certain permanent and temporary easements for construction and maintenance of a pollution control project. In a trial involving the condemned property of appellant, Ida Laura Bueche, a six-man freeholder jury returned a verdict of no damages. From that decision she appealed to the Missouri Court of Appeals, Kansas City District. That court affirmed on the basis of previously decided cases, but ordered a transfer to this court pursuant to Article V, § 10, Constitution of Missouri, V.A.M.S., to provide an opportunity for reexamination of existing law.

It is settled that constitutional charter cities, 'in the enjoyment of their right of home rule may adopt in their charter * * * whatever provisions for the exercise by the city of the right of eminent domain they see fit, free from control of the General Assembly, and their charter provisions have the same force and effect as an act of the General Assembly as long as they are consistent with the Constitution and the laws of the state * * *.' Kansas City v. Webb, 484 S.W.2d 817, 823 (Mo. banc. 1972). Kansas City adopted condemnation provisions as Article VI of its Charter. Acting pursuant thereto, the city council enacted an ordinance providing for condemnation of the property interests required for this project. The ordinance provided that just compensation for the easements taken should be assessed and paid in the manner provided in Article VI of the Charter, and that 'the proceedings therefor shall be instituted and prosecuted in the Circuit Court of Missouri, Sixteenth Judicial Circuit, in the manner authorized by Article VI of said Charter, by provisions of Chapter 523 of the Revised Statutes of Missouri, 1959, as amended (or as may by supplemented by Rule 86, et seq., of the Rules of the Supreme Court of Missouri, as amended).' (Emphasis supplied.)

Suit was instituted. Thereafter, a trial as to the Bueche tract was held in which, as authorized in Article VI, sections 128 and 142 of the Charter, a jury of six freeholders was empaneled. ¹ The city called When the city rested its case, the landowner moved for dismissal of the action on the ground that no evidence had been offered by the city to show failure of the landowner and the city to agree on compensation, as required by Supreme Court Rule 86, V.A.M.R., and § 523.010, RSMo 1969, V.A.M.S. Said motion was overruled and a similar motion at the close of all the evidence was overruled.

as witnesses an employee of the city engineer's office and an employee of the pollution control department, who explained the project and identified various exhibits, including specifications and contract documents which, together with the ordinance providing for the condemnation, were offered in evidence. The city offered no witnesses on valuation, but the jurors did view the property pursuant to the authorization in Article VI, Section 144 of the Charter. ²

The landowner offered certain testimony as to use and valuation of the property involved, following which the case was submitted to the jury on the basis of Instructions 1 and 2 offered by the city. After argument, the jury returned a verdict finding that the landowner had suffered no actual damages as a result of the condemnation of the easements and should receive nothing.

We decide this case as though it came here on direct appeal. Article V, § 10, Constitution of Missouri. Accordingly, we consider those questions which are briefed on appeal.

The first such question is whether the trial court erred in overruling the landowner's motion to dismiss on the ground that the city failed to plead or prove that condemnor and condemnee were unable to agree upon compensation to be paid for the easement.

In City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8 (1943), this court held that in the absence of a statutory requirement that condemnor city allege and prove an unsuccessful attempt to agree with the owner on the amount of compensation, the city need not allege or prove such fact. Subsequently, in Mayor, etc. of City of Liberty v. Boggess, 321 S.W.2d 677, 680 (Mo.1959), this court said: 'It is also our view that plaintiff was not required to allege and prove that it attempted to agree with defendant on the amount of compensation. Such a showing is not required unless it is specified in the statutory or charter provisions upon which the proceedings are based. City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8.'

The opinion in the foregoing City of Liberty case was handed down March 9, 1959. Shortly thereafter, on July 1, 1959, this court promulgated Missouri Rules of Civil Procedure which had been drafted by a special committee appointed several years before. Said rules became effective April 1, 1960. Included was Rule 86, entitled 'Condemnation Proceedings.' Its scope was described in Rule 86.01, as follows: 'In all condemnation proceedings, except those in instances where special provisions to the contrary are, or may hereafter be, provided for by charters or ordinances of those cities having constitutional charters, the procedure to be followed shall be that provided for by these rules.' ³

In this connection, we further note that while some of the rules which were promulgated were shown as being the same, or substantially the same, as earlier rules or statutory provisions, the change tables at page 52 of the pamphlet containing the rules described Rules 86.01 through 86.08 as new provisions in the rules.

It seems clear from the foregoing that the committee intended, in the interest of uniformity, that Rule 86 should apply to all condemnation cases, including suits by constitutional charter cities, unless such cities expressly provide to the contrary in their charter or by ordinance. That intention was adopted by this court when it accepted the committee report and promulgated the rules. As the landowner points out, there are no provisions in the Kansas City Charter or ordinance which expressly provide that Rule 86 shall be inapplicable. To the contrary, language in the condemnation ordinance would seem to expressly make it applicable. Hence, because Rule 86 is expressly applicable to the special charter condemnation at bar, Rule 86.04, which requires the condemnation petition shall contain 'a statement either that the condemner or owner can not agree on the proper compensation to be paid or that an owner is incapable of contracting, is unknown, can not be found or is a non-resident of the state,' must be applied. This, of course, represents a change from the rule announced in the Kirkwood and City of Liberty cases.

Such holding is not inconsistent with or detrimental to the idea of providing an opportunity for the charter city to fashion its own form of government, including the method of condemning property. The requirement that the petition allege inability by negotiation to agree on compensation is simply an effort to avoid unnecessary litigation. If the parties cannot agree, then a condemnation suit can be maintained and tried, but a requirement that there be an attempt to settle prior to utilizing the state's courts for actual litigation is not in any wise an unreasonable restriction on a charter city. In any event, Rule 86 itself permits the city to provide expressly that it is not applicable.

In view of the fact that confusion could and apparently did exist as to whether Rule 86 superseded what this court said in the City of Liberty case with respect to charter cities, ⁴ and in view of the conclusion we reach whereby we award the landowner a new trial on account of error in instructions, we have concluded that it would not serve the interests of justice to hold in this case that this suit must be dismissed for failure of the petition to allege a prior unsuccessful effort to agree upon damages. For that reason, we deny relief to appellant on this point. However, we do hold that Rule 86 is applicable to constitutional charter cities insofar as not expressly rejected, as provided in the rule, and that from and after the date of the publication of this opinion in the Reporter System, petitions filed by constitutional charter cities must allege an unsuccessful effort to agree upon compensation, unless, of course, in accordance with Rule 86, the charter city expressly rejects that requirement.

The landowner's second contention is that Supreme Court Rule 70.01 was violated by the use of Instructions 1 and 2 on the issue of damages in lieu of MAI 9.02, which was the prescribed instruction in It is well settled that when a MAI instruction is applicable, its use is mandatory. Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo.1967). MAI 9.02 is captioned 'Damages--Eminent Domain--Part of Property Taken.' It tells the jury to award the landowner the difference between the fair market value of his property immediately before the taking and the value of his remaining property immediately after such taking, which difference in value is the direct result of the taking and the uses which the condemnor has the right to make of the property taken.

condemnation suits where only part of the property is taken.

The Committee's Comment following MAI 9.02 makes it clear that the use of this instruction is mandatory in such a situation as that presented in this case. That Comment is as follows:

'This form shall be used where only part of defendant's property is taken. It authorizes damages for the value of the property condemned and the resulting damage to the remaining property.

'This instruction is...