"Outlot No. 61 in the city of Jefferson consists of 20 acres of land. Its easterly line is the easterly corporate limits of the city, its northerly line is High street, its southerly line a road, or Miller street, and its westerly line is Benton street (or alley), which is 30 feet wide. The westerly half and the southeast quarter of this outlot 61, 15 acres, belong to appellants John E. Wells and Catherine Wells as cotenants; the remaining 5 acres, the northeast quarter, belong to defendant Frederick H. Zeitz, who does not appeal, and who abided by the report of the commissioners. Appellants' 15 acres in said outlot have for many years been used as a home — years ago by appellants' father, Judge Wells, later, by appellants, and for four years by a tenant, Peter Bolton, a brother-in-law of John E. Wells. Four or five acres of appellants' land is in orchard, apple trees, and the balance is used for garden, pasture, and meadow, dwelling house, farm, etc.
"McCarty street, in Jefferson City, terminates on the east at the westerly line of this outlot No. 61. The purpose of this procedure is to extend that street easterly through that lot to the easterly extremity of the city, by taking a strip 60 feet wide almost through the middle of said outlot No. 61. There is a seven-room house, a barn and crib, a cistern, and 12 apple trees on the 60-foot strip proposed to be taken as a street. It was not proposed by the proceeding to grade or pave the ground to be taken
or to construct sidewalks. It was proposed simply to condemn that 60-foot strip for street purposes. The case is therefore one purely of eminent domain and taxation. [I suppose he means eminent domain and not taxation.]
"The city enacted an ordinance, No. 1124, January 20, 1913, establishing and extending McCarty street through said outlot No. 61 to the easterly line thereof, over land owned by defendants Wells and Zeitz, a distance of 903 feet, 60 feet wide; and on February 4, 1913, the city enacted another ordinance, creating a benefit district within which private property should be assessed to pay for the property to be appropriated and the damage sustained by the establishment of said street, and defining the limits of such district to be the whole of outlot No. 61, and nothing more.
"Thereafter the city filed its petition in the circuit court, basing its cause of action on said ordinances and sections 9261 to 9275, Revised Statutes 1909, and asking for the appointment of commissioners to `assess the damages which said owners may severally sustain by reason of the taking or damaging of such real estate by the city of Jefferson aforesaid for the purpose of extending and establishing McCarty street through said outlot No. 61 as heretofore set out, and to assess the property benefited by such improvements within the limits of said outlot No. 61 to pay therefor.' The petition says that the northerly line of the 60-foot strip to be appropriated was 433 feet from High street; it does not state the distance from the southerly line to McCarty street. The said outlot was bounded on its northerly side by High street, which was then and had been for many years an established street or public road.
"The commissioners reported that 13,545 square feet of the property of F. H. Zeitz were appropriated for said street, and assessed his damages at $27 and charged his remaining property with $60 benefits. They found that 40,635 square feet of the property of appellants John E. and Catherine Wells were appropriated for said proposed street, and `that their damage on account of appropriating said property and the improvements thereon, consisting of a dwelling house, cistern, stable, fencing, and from all other causes in connection with extending of said street through and over their property,' was $328, and, finding the lands of these appellants, `consisting of 15 acres, including the amount taken as a street, is benefited as a whole, the same being in one tract and owned by the same parties, in the sum of $295, the said sum of $295 is assessed as the amount that said tract of land ought to be charged with on account of benefits by reason of the opening of the street aforesaid for the purposes of paying the sum of $355, the total amount of damages found to have accrued to all of the lands lying in outlot No. 61 on account of the opening of the street through the same.'
"On the first day of the next regular term of the court, the defendants John E. and Catherine Wells filed their written exceptions to said report and asked for an appraisement by a jury. The report was confirmed as to Zeitz, who filed no exceptions, and the exceptions of these appellants were sustained as to the request for a jury to assess their damages, and a jury was ordered, qualified and sworn.
"The court held the burden of proof was on the defendants, and required them to open the case. Defendants' counsel thereupon offered to read to the jury that part of the exceptions of John E. Wells and Catherine Wells in which is set forth the property attempted to be taken by this proceeding, and what appellants allege was denied by the court, and defendants were compelled to forego the right to read their exceptions, or any part thereof or any formal pleadings, to the jury.
"The case proceeded to trial, and defendants' evidence showed that there was, on the 60-foot strip of their ground to be taken for the street, a house worth from $800 to $1,400, a barn and crib worth from $200 to $300, a cistern worth $75, 12 apple trees worth from $30 to $120, all belonging to these appellants; that there was an orchard of four or five acres on appellants' land, and most of the balance was used for pasture or meadow, and that a fence to inclose the land after the opening of the street would cost $100. The witnesses placed the value of appellants' land to be taken, exclusive of the improvements, at from $800 to $1,800."
