City of Caruthersville v. Faris

• Decision Date: 14 December 1940
• Citation: City of Caruthersville v. Faris, 237 Mo.App. 605, 146 S.W.2d 80 (Mo. App. 1940)
• Parties: City of Caruthersville, a Municipal Corporation, Appellant; Mrs. C. G. Shepard, Nelle Lee Dorroh, Mrs. W. D. Byrd, N.W. Helm, J. L. LaForge and L. A. Ferguson, Respondents (Plaintiffs), v. John G. Faris, G. V. Faris, and Charles (Charlie) Faris, Appellants, (Defendants)
• Court: Missouri Court of Appeals

146 S.W.2d 80

237 Mo.App. 605

City of Caruthersville, a Municipal Corporation, Appellant; Mrs. C. G. Shepard, Nelle Lee Dorroh, Mrs. W. D. Byrd, N.W. Helm, J. L. LaForge and L. A. Ferguson, Respondents (Plaintiffs), v. John G. Faris, G. V. Faris, and Charles (Charlie) Faris, Appellants, (Defendants)

Court of Appeals of Missouri, Springfield District

December 14, 1940

Appeal from the Circuit Court of Pemiscot County; Hon. L. H. Schult Judge.

Reversed and remanded (with directions).

Von Mayes and Corbett & Peal for appellants.

(1)(a) In a proceeding to appropriate land for public purposes the court is without jurisdiction unless the provisions of the law authorize it and such provisions are strictly complied with by the petitioner.Fore v. Hoke,48 Mo.App 254.(b) When a petition states facts showing the court has no authority in law to grant the relief asked for, it is without jurisdiction.Dusenberg v. Rudolph,30 S.W.2d 94, 97.(2) A city has the right to condemn property for public uses which are situate within the city limits and not otherwise, unless the statute expressly authorizes.20 C J., sec. 24.There is no statute in this State delegating to a city of the third class the right to condemn property outside of the city, either for cemetery or general public purposes.Secs. 6852, 14068, R. S. 1929.There are two kinds of public cemeteries.One platted and the disposition of the lots controlled by the owner and one unplatted and set apart for the free use of the public.Sec. 14066, R. S. 1929;Shiel v. Walker,114 Mo.App. 521;Campbell v. City of Kansas,102 Mo. 326;United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907;14 L. R. A. 114.

Ward & Reeves and Fred L. Henley for respondents and appellantCity of Caruthersville.

(1) There are but two classes of cemeteries known to the law of Missouri -- public and private.A cemetery in which is permitted the right of burial to the public generally is a public cemetery, regardless of whether the proprietors conduct the cemetery as an association or whether it is conducted by an arm of the government, such as authorized by cities in this State.Mount v. Yount,220 Mo.App. 187;Woolridge v. Smith,243 Mo. 190;Tracy v. Bittle,213 Mo. 302;Hammersley et al. v. LaForge et al.,80 S.W.2d 211;11 C. J., sec. 1.(2)Chapter 124, R. S. 1929, relates solely to cemeteries.Section 14052 relates to public cemeteries owned and controlled by persons or associations.Section 14067 relates to cemeteries which have been used as such for a period of more than ten years and which have not been deeded or dedicated to the public in the manner provided in Section 14052.Section 14068 relates to public cemeteries owned and controlled by cities, towns and villages and authorizes the city to acquire property for such purpose within or outside the city.Section 14066 provides that when it shall become absolutely necessary to enlarge any public burial ground or cemetery five or more persons interested in the enlargement of such burial grounds or cemetery may bring an action to condemn land for such enlargement, and provides that the title to the land when acquired shall vest in the public only for cemetery purposes.There is no limitation in this section to any particular kind of public cemetery.The public character of the cemetery is the same whether it is controlled by individuals, associations, corporations or a city, or whether by the condemnors who are trustees for the public.The legal owners of the fee, unless prohibited by statute, may sell or alienate a cemetery or burial grounds to some other person, association or corporation for cemetery purposes.C. J. S. 14, sec. 21, p. 80;United Cemeteries Co. v. Strother,332 Mo. 971;Allison v. Cemetery Caretaking Co.,283 Mo. 424;Normandy Consolidated District v. Harral,315 Mo. 602.(3)Shiel v. Walker,114 Mo.App. 521, does not support the position of appellants.That case merely follows the well-recognized rule that without specific legislative authority lands which have already been dedicated to a public use cannot be condemned for the same or another public use, and that what is now Sections 14066and14067 do not confer such authority.The lands in that case, which were sought to be condemned as provided in Section 14066, had already been dedicated as provided in Section 14052.Section 14070;Normandy Consolidated Dist. v. Harral, supra.

Tatlow, P.J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW

This is a condemnation proceeding seeking to condemn land to enlarge a cemetery.

The petition has two prongs; that is, it presents two separate and perhaps inconsistent theories.The six individual plaintiffs seek to condemn the land under the power of eminent domain, which they claim is conferred upon them by section 14066,Revised Statutes 1929, as representatives of the public, to enlarge a public cemetery.The City of Caruthersville seeks to condemn the land under the power of eminent domain, which it claims is conferred upon it under Section 6852,Revised Statutes 1929, relating to cities of the third class.The allegations of the petition as to the alleged cause of action of the individuals is as follows:

"Plaintiffs further state that the individual plaintiffs constitute more than five persons of the public in interest who reside near and within the vicinity of Little, Prairie Cemetery, a public cemetery and burial ground of the dead, owned, controlled and maintained by the City of Caruthersville, Missouri.

"Plaintiffs further state that said Little Prairie Cemetery is located immediately south and within three miles of the said City of Caruthersville, and embraces and includes therein about nine acres of ground; that said cemetery is now practically and completely filled with graves and that all of the burial space therein is practically exhausted, and by reason thereof it has become and is absolutely necessary to enlarge said public cemetery and burial ground, and that the plaintiff City and the said individual plaintiffs as members and constituting a part of the public, are interested in the enlargement of said burial ground and cemetery, and that the enlargement thereof is in the interest of the public in order to acquire grounds for the burial of the dead; and that public necessity and convenience require the taking and condemning of the following described parcel of land in Pemiscot County, Missouri, belonging to the defendants, John G. Faris, G. V. Faris and Charles (Charlie) Faris, to-wit:"

Then follows a description of the 4.29 acres sought to be condemned.

The allegations of the petition, with reference to the alleged cause of action in favor of the City, are, in addition to the above allegations, that it is a city of the third class with full power and authority to condemn property for public purposes; and the land sought to be condemned is within three miles of the city and is less than 160 acres.

The defendants interposed a demurrer to the petition, alleging, as grounds therefor, the following:

"1.That it appears upon the face of the petition that there is a misjoinder of partiesplaintiff, in that, the suit is brought on behalf of the City of Caruthersville, a municipal corporation, and on behalf of certain individuals who claim to represent the public and the partiesplaintiff are not united in interest, but claim in different capacities.

"2.That so far as the plaintiff, the City of Caruthersville, is concerned the petition wholly fails to state any cause of action in favor of said plaintiff against the defendants, or either of them.

"3.That there is a defect of partiesplaintiff and defendant in this cause, in that, there are parties interested in the subject matter of the action who are neither made plaintiff or defendant therein."

The defendants no doubt could have required the plaintiffs to elect upon which cause of action the city or the individual defendants would proceed.They did not do so and have presented the case on a joint abstract and on joint briefs.The court sustained the demurrer as to the City of Caruthersville and overruled it as to the individual defendants.It then appointed commissioners who assessed the damages that the defendants had sustained through the taking of their property, in the sum of $ 1179.75.The defendants filed exceptions to the report, as follows:

"1.That the damages so assessed are greatly inadequate and greatly less than just compensation to defendants as to the land described in said report and in the petition for condemnation herein.

"2.That the petition does not state facts sufficient to constitute a cause of action.

"3.That the Court is without jurisdiction of the subject-matter of the proceedings herein for the reason plaintiffs have no right to condemn said land for cemetery purposes under the law and the allegations of the petition herein."

The decree of the court, omitting the caption and appearance of counsel, provides as follows:

" . . plaintiffs pay into court for the use and benefit of said defendants the sum of Eleven Hundred Seventy-Nine and 75/100 ($ 1179.75) Dollars, the amount of the award made by the Commissioners heretofore appointed herein.Thereupon the defendants withdraw their motion heretofore filed to dismissplaintiffs' suit on the ground plaintiffs had not deposited in court the amount of damages so assessed by the Commissioners.

"Thereupon the court takes up for consideration the exceptions to the report of the Commissioners filed herein by the defendants and the court overrules that part of said exceptions attacking the sufficiency of the petition herein, and that part of said exceptions attacking the jurisdiction of this court over the subject-matter of the proceedings herein.Thereupon the parties...