Center School Dist. No. 58 of Jackson County v. Kenton

• Decision Date: 13 March 1961
• Docket Number: No. 1,No. 47973,47973,1
• Citation: 345 S.W.2d 120
• Parties: CENTER SCHOOL DISTRICT NO. 58 OF JACKSON COUNTY, Missouri, et al., Respondents, v. Joseph S. KENTON and Marilyn H. Kenton, Appellants
• Court: Missouri Supreme Court

Page 120

345 S.W.2d 120

CENTER SCHOOL DISTRICT NO. 58 OF JACKSON COUNTY, Missouri et al., Respondents, v. Joseph S. KENTON and Marilyn H. Kenton, Appellants.

No. 47973.

Supreme Court of Missouri, Division No. 1.

March 13, 1961.

Motion for Rehearing or for Transfer to Court en Banc Denied

April 10, 1961.

Henry G. Eager, Arthur M. Wright, Kansas City, for appellants. Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, of counsel.

Clarence H. Dicus, Gerald W. Gorman, Kansas City, for respondent. Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, of counsel.

HOLLINGSWORTH, Judge.

The two basic questions in this case are (1) whether a school district may abandon and dismiss without prejudice its condemnation action after a jury has assessed the landowner's damages, and (2) the extent of liability, if any, of the district for damages, interest and litigation expense (other than statutory costs) incurred by the landowner in defense of its right to compensation.

On the 29th day of January, 1959, Center School District No. 58 of Jackson County and its Board of Directors filed this action seeking a decree of condemnation for school site purposes of five residential lots of real estate in Kansas City owned by defendants. On March 13, 1959, commissioners theretofore appointed by the court, by their report on that date duly filed, assessed defendants' damages for the taking of said land in the sum of $17,500, to which report both parties filed written exceptions, each asking that the report be set aside and that the damages be assessed by a jury, as provided by law. It was so ordered. Thereafter, on October 14, 1959, the jury, following a three-day trial, assessed defendants' damages at the sum of $33,000 and voluntarily added interest thereto in the amount of $1,155, for which total sum judgment was on said date rendered. Thereafter, and within ten days, to wit: October 23, 1959, plaintiffs filed written 'Abandonment of Proposed Appropriation and Dismissal of Condemnation Action', wherein they did 'abandon the proposed appropriation of [said real estate] and dismiss, without prejudice, at plaintiffs' cost, the condemnation action heretofore brought by such plaintiffs.' The trial court thereupon 'ordered and adjudged that this cause be * * * dismissed without prejudice' and 'that plaintiffs pay all costs incurred herein * * *.' On the 29th day of October, 1959, defendants filed three motions, claiming alternatively:

(1) That the proposed abandonment and dismissal should be stricken because the proceedings could not be abandoned after plaintiff condemnors had voluntarily proceeded to trial upon the issue of damages and verdict and judgment had been entered;

(2) That defendant had necessarily paid out or become liable for attorneys' fees and other expense in the total sum of $8,300 in presenting to the jury the evidence in support of their claim for damages for the taking of their land and that they had been unlawfully deprived of interest (as damages) for the loss of use of their real estate in the sum of $1,155, for all of which they should be reimbursed; and

(3) That plaintiff condemnors had no legal right to 'dismiss without prejudice' and dismissal could be lawfully allowed only with prejudice.

At the trial of the issues presented by defendants' foregoing motions, the evidence favorable to defendants made an issue of their right to recover from plaintiffs in excess of $7,500. The trial court found all of the issues in favor of plaintiffs. The appeal herein having been taken prior to January 1, 1960, jurisdiction thereof lies in this court.

In disposing of the case, the trial court stated: 'I have come to the conclusion that this case of Meadow Park Land Company v. School District of Kansas City, Missouri , 257 S.W. 441 , in the Supreme Court very well rules our situation here, * * *.' The court further announced that its ruling was not predicated upon the fact that defendants had proceeded by way of the foregoing motions in the condemnation action instead of by an independent action, as was done in the Meadow Park Land Company case and other cases. Plaintiffs do not here challenge defendants' right to proceed by motion in the instant action and we, therefore, do not determine the propriety of such procedure, if and when timely challenged.

The right of school districts to condemn land for school purposes is declared in Secs. 165.100, 165.533 and 165.593, RSMo 1949; Id. RSMo 1959, V.A.M.S. (to which revisions all statutory citations herein refer unless otherwise indicated). From the time of the institution of this action up to and including the abandonment thereof, the procedure was governed generally by Chapter 523 of said statutes. ¹ Section 523.040, read and considered in pari materia with Secs. 523.050 and 523.060, definitely vests the condemnor with the right to abandon this proceeding at any time within ten days after the first assessment by the commissioners or, if the court, on application of either or both of the parties, awards a new assessment to be made by a jury, as was done in the instant case on application of both parties, then such abandonment may be made within ten days after the assessment made by the jury. State ex rel. Hilleman v. Fort, 180 Mo. 97, 113-114, 79 S.W. 167, 171; State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 761, 142 S.W.2d 1025, 1028. Unquestionably, plaintiffs did abandon the proceedings by judicial admission filed within ten days after the assessment of the jury and we do not understand that defendants presently contend they could not as a matter of right do so. We, therefore, turn to the issues of whether defendants are entitled to recover (1) counsel fees and expense incurred in the defense of their right to just compensation for the taking of their land, or (2) interest on the award from the filing of the commissioners' report, or (3) whether the action could be lawfully dismissed without prejudice.

Defendants cite Sec. 523.070, which provides: 'The cost of the proceeding [in condemnation] shall be paid by the company seeking the appropriation, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just * * *.' (Emphasis ours.) They then cite Section 26, Article I, Missouri Constitution, 1945, V.A.M.S., which states that 'private property shall not be taken or damaged for public use without just compensation,' and contend it is not necessary that an attempted condemnation constitute actual occupancy or result in the taking of property in order for the landowner to become entitled to compensation and that any substantial interference with the owner's enjoyment of the property will support an award of damages for litigation expense necessarily incurred in the defense of his right involved in such an action. In support of their contention, defendants cite decisions in a number of condemnation proceedings wherein private corporations, such as railroads and pipeline companies, have been held liable for counsel fees and other litigation expense incurred by landowners following abandonment of such proceedings by the condemnors. A number of these are based upon the early case of North Missouri Railroad Co. v. Lackland, 25 Mo. 515, from which defendants quote as follows, loc. cit. 534:

'[T]he court shall adjudge the costs of the proceeding according to equity. It is obvious that if the company is permitted to discontinue, all the costs and expenses of the landowner should be paid by the company. This will embrace all the costs of the case and counsel fees, both here and in the court where the case was tried.' (Emphasis ours.)

Defendants fail to note, however, that the holding above quoted is not predicated upon Sec. 523.070 or any other general cost statute but was made under the provisions of the Act (charter) creating the condemning railroad (Session Acts 1850-51, p. 486), to wit:

'In all such cases, the court shall adjudge the costs of the proceedings according to equity; and the court shall have power to make such orders and take such other steps, as will promote the ends of justice between the owners of such lands and said company.' (Emphasis supplied.)

There is no language such as that above italicized in Sec. 523.070. To the contrary, it limits the right of the court to adjudge only the costs of such an action according to equity. Other cases wherein railroads were condemnors cited by defendants are: Leisse v. St. Louis & Iron Mountain Railroad Co., 2 Mo.App. 105; 5 Mo.App. 585; 72 Mo. 561; Lohse v. Missouri Pacific Railway Co., 44 Mo.App. 645; Sterrett v. Delmar Avenue & Clayton Railway Co., 108 Mo.App. 650, 84 S.W. 150; Kirn v. Cape Girardeau & Chester Railroad Co., 124 Mo.App. 271, 101 S.W. 673; and Gibbons v. Missouri Pacific Railway Co., 40 Mo.App. 146. For the reasons hereinafter stated, we deem them not controlling.

Defendants also cite Simpson v. City of Kansas City, 111 Mo. 237, 20 S.W. 38. It is not, however, helpful to them. In that case, Simpson brought an independent action against Kansas City for damages alleging that Kansas City brought an action in 1879 condemning his property for the widening of Twelfth Street, the damage for the taking of which was assessed in 1881, but that the action remained pending (not at Simpson's instance) until 1888, a period of nine years, at which time the proceedings were abandoned. The petition alleged that the proceedings were unnecessarily delayed and wrongfully and vexatiously continued to Simpson's great damage. The court held that, 20 S.W. loc. cit. 40:

'So long as a city is acting under authority of law, and in conformity thereto, it is difficult to find any satisfactory ground upon which to base an action for damages. It is true that, so long as the proceedings are pending, the owner is deprived of the full use and enjoyment of his...