Burke v. The City of Kansas

• Decision Date: 27 November 1893
• Parties: Burke v. The City of Kansas, Appellant
• Court: Missouri Supreme Court

24 S.W. 48

118 Mo. 309

Burke v. The City of Kansas, Appellant

Supreme Court of Missouri, First Division

November 27, 1893

Rehearing Denied 118 Mo. 309 at 324.

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Plaintiff Mr. Thomas Burke, had judgment in the circuit court for damages for defendant's appropriation of his land. Defendant appealed.

The bill of exceptions, filed by Mr. Burke in the condemnation proceeding, begun in 1879 (referred to in the opinion of the division), gives the following account of the trial therein in the circuit court, viz:

"On the twenty-ninth day of November, 1881, said cause coming on for hearing, the following jury was duly selected and sworn (Here their names appear).

"The following evidence was introduced by the City of Kansas to-wit: 'Evidence tending to show that the thirty-two feet off the south side of lot 12, within the boundaries of said street was of the value of from $ 100 to $ 150 per front foot; evidence regarding the proper apportionment of the cost of said property to the various lots and parcels to be benefited thereby.'

"The defendant, Thomas Burke, introduced evidence tending to show that he was the owner of the north twenty-eight feet of said lot 12, within the boundaries of said street and that the same was of value equal to that of said Bryan, Doling and Bryan adjoining thereto on the north, to-wit: Of the value of $ 150 per front foot, and that he, said Burke, had been, until about two years before said trial, in the actual possession of said property and that he is yet in the actual possession of a portion thereof, having a building erected thereon.

"The City of Kansas then offered evidence tending to show that in the year 1871, an ordinance was passed by the city council of said city, opening said Seventh street from Wyandotte street to Delaware street within the same boundaries prescribed by the ordinance in this case, and under said ordinance a jury was empaneled by the mayor of said city, which jury rendered a verdict among other things assessing to the said Thomas Burke, as damages for the taking of said property, $ 750, and also assessing against said Burke as the owner of lot 17, in block 2, in said addition, for benefits thereto the sum of $ 650; that afterwards the city council of said city passed an ordinance directing the issue of certificates of indebtedness of said city to the owners of property taken for opening said street for the amounts severally due them and that said Burke was a member of the city council at that time, and voted for said ordinance; that in pursuance of said ordinance a certificate of indebtedness was afterwards issued by said city to said Burke for $ 100, being the difference between his damages as so assessed and the benefits assessed against him as owner of said lot 17, and that said Burke received said certificate and afterwards collected the same from said city; that the City of Kansas has used part of the property so claimed to be taken and still uses it for the purpose of a street; said Burke objected to said ordinance as irrelevant and incompetent, but the court overruled his objection and admitted said evidence, to which ruling and decision of the court said Burke at the time excepted.

"Said Burke then offered evidence tending to show that the City of Kansas was afterwards enjoined by this court from collecting from some of the property found to be benefited in and by said verdict, the amounts assessed against such property, and that said special taxes so enjoined were not, in fact, collected by said city for the purpose of paying for the property taken, and that said Bryan, Doling and Bryan were never, in fact, paid anything as compensation for said north thirty-two feet of lot 13, and that the city never obtained any title to the same under said proceedings. The jury viewed the premises. The City of Kansas then asked the court to instruct the jury as follows:

"'1. The court instructs the jury that if Thomas Burke, in the condemnation proceedings of 1871, read in evidence, was awarded damages for the north twenty-eight feet of lot 13, block 1, Coffman's addition to the City of Kansas, and was assessed with benefits in the same proceedings; and that he accepted the difference between the damages so awarded and the benefits so assessed, this was a ratification of said award and assessment, and he is estopped from calling in question the validity of said proceedings, even if such proceedings were irregular or invalid as to other parties to said proceedings who were not duly notified, or for other reasons not legally bound by them.

"'2. If you find the facts stated in instruction numbered 1, then the jury are instructed not to assess any part of the amount to be paid for the taking of land against lot 17, in block 2, in Coffman's addition, in this proceeding.

"'3. The jury are instructed to ascertain the actual damage done to each person in consequence of the taking of property in this proceeding without reference to the proposed improvement, or the just compensation to be made therefor. And to pay such compensation the jury will first assess against the city the amount of benefits to the city and public generally. The balance of such compensation the jury will assess against the several lots and parcels of land in the limits deemed benefited by this proceeding; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed.'

"To the giving of said instructions numbered one (1) and two (2), said Thomas Burke objected, but the court overruled said objection and gave said instructions, to which rulings and decisions of the court said Thomas Burke at the time excepted.

"The jury then on the first day of December, 1881, returned their verdict.

"And afterwards, on the fifth day of December, 1881, said Thomas Burke filed herein his motion to set aside said verdict and for a new trial, and to set aside said judgment," etc.

The judgment of the circuit court in that case was in these words, viz.:

"It is, therefore, ordered, adjudged and decreed by the court that the finding and verdict of the jury aforesaid be, and the same is hereby, confirmed, and it is ordered, judged and decreed by the court that the City of Kansas have and hold the property sought to be taken, to-wit: 'That part of lot twelve (12), block one (1), in Lott Coffman's addition to the City of Kansas, within the boundaries of the street established by said ordinance, the same being thirty-two (32 feet off the south side of said lot;' also 'that part of lot thirteen (13), in block one (1), in Lott Coffman's addition to the City of Kansas, within the boundaries of the street established by said ordinance, the same being twenty-eight (28) feet off the north side of said lot,' for the purposes specified in the said ordinance providing for the improvement, being for public use as such street; and that the City of Kansas pay therefor the amount assessed against said city, to-wit, the sum of thirty-two hundred dollars ($ 3200), and that the several lots and parcels of private property assessed to pay compensation aforesaid by the verdict or finding of the jury herein, stand charged and be bound respectively for the payment of said assessments, with interest at the rate of fifteen (15) per cent. per annum if not paid within ten days, and that this judgment be enforced by special execution to collect assessments as aforesaid, and that the City of Kansas be put in possession of the property so taken, or any part thereof, the full compensation therefor being paid or tendered, and that the costs and charges of this proceeding be taxed against the City of Kansas."

The other essential facts are stated in the divisional opinion.

Reversed.

F. F Rozzelle, W. S. Cowherd, F. H. Dexter, A. M. Allen and James Black for appellant.

(1) The petition did not state a cause of action for conversion and the demurrer should have been sustained. (2) The voluntary acceptance by the owner of property of the damages assessed or any part thereof under condemnation proceedings, in the absence of fraud or mistake, cures any and all defects and irregularities in the proceedings and acts as an estoppel in pais against the owner. Elliott on Roads and Streets, p. 207; Dillon on Municipal Corporations [4 Ed.], secs. 592, 593; Mills on Eminent Domain [2 Ed.], secs. 324, 329; Herman on Estoppel, secs. 1069, 1149; Lewis on Eminent Domain, sec 531; 2 Smith's Leading Cases [6 Am. Ed.], p. 769; Austin v. Loring, 63 Mo. 22; Smith v. Warden, 19 Pa. St. 424; Garnar v. Bird, 57 Barb. 277; Clyburn v. McLaughlin, 17 S.W. 692; State v. Lubke, 15 Mo.App. 167; Embury v. Conner, 3 N.Y. 511; Sherman v. McKeon, 38 N.Y. 275; City v. Railroad, 108 N.Y. 14; Burns v. Railroad, 9 Wis. 450; Karber v. Nellis, 22 Wis. 215; Whittlesey v. Railroad, 23 Conn. 421; Hitchcock v. Danbury, 25 Conn. 516; Test v. Larsh, 76 Ind. 452; Railroad v. Johnson, 84 Ind. 420; Chatterton v. Parrott, 46 Mich. 436; Kile v. Yellowhead, 80 Ill. 208; Hartshorn v. Potroff, 89 Ill. 509; Hatch v. Hawkes, 126 Mass. 177; Magrath v. Brock, 13 Up. Can. (Q. B.) 629; Company v. Middaugh, 12 Col. 434; Railroad v. Allen, 13 Col. 229. (3) The condemnation proceedings and receipt of damages ipso facto vest the title in the party seeking to condemn. Mills on Eminent Domain, secs. 329, 334; Elliott on Roads and Streets, p. 207; 6 American and English Encyclopedia of Law, pp. 591, 627; Railroad v. Smythe, 45 Ind. 322; State v. Dickson, 3 Mo.App. 466; Evans v. Haefner, 29 Mo. 141; Tamm v. Kellogg, 49 Mo. 118; State v. Culver, 65 Mo. 609; Rees v. City of Chicago, 38 Ill. 322. (4) The mere non-user and...