City of Kansas City v. Bacon

• Decision Date: 19 June 1900
• Citation: 157 Mo. 450,57 S.W. 1045
• Parties: CITY OF KANSAS CITY v. BACON et al.
• Court: Missouri Supreme Court

57 S.W. 1045

157 Mo. 450

CITY OF KANSAS CITY v. BACON et al.

Supreme Court of Missouri.

June 19, 1900.

EMINENT DOMAIN — PARKS — ESTABLISHMENT — DAMAGES — BENEFITS — PROCEEDINGS TO DETERMINE — JURY — INSTRUCTIONS — SPECIAL ASSESSMENT.

1. Under the Kansas City charter, authorizing the establishment of parks, the cost to be paid by special assessment according to benefits, and providing that the jury, in assessing the benefits, should determine the benefit to the city at large, inclusive of the benefit to city property, and the benefit to any private lot within the benefit district, an instruction that the jury, in estimating the benefits to the city and to the public generally, or to any property in the benefit district, should consider only such benefits as were direct, certain, and proximate, was, correct, since the rule for ascertaining the benefits to the city at large is the same as for ascertaining the benefits to private property, and the distinction between general and special taxation need not be made.

2. Where, in condemnation proceedings, the jury, under proper instructions, returned a verdict assessing the benefits to the city as nominal, and that the benefits accruing from the improvement were limited to a particular locality, and the record shows substantial evidence on which the verdict might have been found, such verdict will not be disturbed, since the court cannot say, as a matter of law, that the assessment of merely nominal benefits to the city at large rendered the assessment of actual benefits to property in the benefit district a violation of the constitutional provision securing to every person the equal protection of the law.

3. Where, in proceedings to assess benefits for a public improvement, the benefits to be derived from such improvement were confined to a particular locality, property owners cannot raise the objection for the first time on appeal that there was inequality in such assessment because benefits assessed to the city at large were nominal, but should have made it the ground for a new trial.

4. Under the Kansas City charter, providing that, in condemnation proceedings, if the jury find that any number of tracts or parcels of land within the benefit district are benefited ratably in proportion to the assessed value thereof as shown by the books of the assessor, they may so assess the same, the fact that under such circumstances the assessment was by the front foot did not render it unconstitutional, as taking private property without due process of law.

5. Where, in proceedings to establish a public park and assess the damages and benefits accruing therefrom, an instruction was given that the owner of the land taken for such park was entitled to the market value thereof, "market value" meaning such sum as it was worth to persons generally, if those desiring to purchase were found, who were willing and able to pay its just and full value on ordinary terms of a private sale, such instruction is proper, and not objectionable as giving no criterion of value in case such purchasers could not be found.

6. Where, in proceedings to establish a park and assess the damages and benefits accruing therefrom, an instruction was given that the jury, in assessing damages to land left in a lot after part had been taken for the park, should assess such sum as would compensate for damages to that not taken, less the benefits peculiar to such tract of land by reason of the establishment of such park which were not common to the other land in the same neighborhood, such instruction was correct, and not in conflict with one that they should not consider benefits that the particular lot will receive in common with other property in the city, since the latter relates to benefits assessed on property not taken to pay damages for property taken.

7. Where, in proceedings to establish a park and assess the benefits and damages accruing therefrom, an instruction was given that, in estimating the value of property to be taken on streets that had not been graded in front of same, the jury should consider said property in its present condition, and relations to other property and streets surrounding it, and use their own judgment as to how it could be best utilized, disregarding, if they thought best, any established or proposed grade by the city, such an instruction will not be held erroneous; it not appearing that there were any circumstances

or facts which could make it harmful to defendants.

8. Where, in proceedings to establish a park and assess the benefits and damages accruing therefrom, an instruction that in passing on a certain tract, on which was a spring of water, the jury should consider the special value of such spring, together with all lawful uses to which the owner may put such spring for profit, was proper.

9. In proceedings to assess benefits of a public improvement, only that property which is benefited is to be assessed, and, what property is benefited being a question for the jury, their verdict omitting from assessment certain property will not be interfered with.

Sherwood and Burgess, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county.

Proceedings to establish a park in Kansas City, and to assess the damages and benefits accruing therefrom. From a judgment assessing benefits against their property, defendants Martha E. Bacon and one Monroe appeal. Affirmed.

Appeal from a judgment of the circuit court of Jackson county assessing benefits against property of the defendants in the proceedings to establish Penn Valley Park, in Kansas City. For the establishing of the park 134 acres of land were condemned, the total amount assessed as the value of which to be paid the owners was $870,759.60; and for the payment of that amount assessments as of benefits were made on a large number of lots included in what is known as "West Park District," among which were lots owned severally by defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon aggregate $3,252.49; those on the lots of Monroe, $991.17. The amount assessed against the city as general benefits was $1. As the constitutionality of the law under which the proceedings were had is questioned, as well as the conformity of those proceedings to the law, a brief recital of its requirements will be necessary. Under article 10 of the charter of the city, there is a board of park commissioners, whose duty it is, inter alia, to devise and adopt a system of public parks "for the use of the city and its inhabitants, and to select and designate lands to be used and appropriated for such purposes, * * * and by and with the approval and authority, by ordinance, of the common council, to lease, purchase, condemn or otherwise acquire in the name of the city, land for parks," etc. By section 7 of that article the city is divided into three park districts, whose boundaries are defined, of which West Park district is one. Section 8: "It shall be the duty of the board of park commissioners to provide at least one park in each park district, and to purchase or otherwise acquire, with the concurrence of the common council as herein provided, real estate therefor; and the common council is hereby authorized and empowered to provide by ordinance for the purchase, condemnation or otherwise obtaining of land" for parks, etc., provided "the same be first recommended by the board of park commissioners. And * * * it shall be the duty of the common council upon such recommendation to proceed forthwith, by ordinance, to provide for the establishment" of the park, etc.; payment for the same to be made out of the general funds, or by issue and sale of bonds, or "as hereinafter provided." Section 9 provides that the parks in any district, "whether acquired by purchase or condemnation, may be paid for by special assessments upon the real estate therein found benefited thereby, as hereinafter authorized." Section 10; "Whenever the common council, upon the recommendation of the board of park commissioners, shall provide by ordinance for the purchase or condemnation of any real estate selected for a park * * * and it becomes necessary to take or damage any private property for any such purpose, said common council shall, by ordinance, describe the private property to be purchased, taken or damaged; and in case the same is to be paid for by special assessments upon real estate, shall designate the time and mode of payment of such assessments, and shall also prescribe the limits within which private property shall be deemed benefited by the proposed improvement, and be assessed and charged to pay compensation therefor, which benefit district may include one or more park districts or part or parts of such district or districts." The section then goes on to direct how the ordinance shall describe the property to be affected, and the duties of the officers in relation to the proceedings, and the institution of the suit in the circuit court of the county. Section 11 provides that upon the filing of a copy of the ordinance in the circuit court the court will appoint a day for the impaneling of a jury to assess the damages and benefits, and give notice thereof by publication. Sections 12, 13, and 14 relate to matters of further detail of procedure, unnecessary to mention here. Section 15, relating to assessments of benefits, provides that the jury "shall estimate the amount of benefit to the city at large, inclusive of any benefit to the property of the city, and shall estimate the value of the benefit of the proposed improvement to each and every lot, piece and parcel of private property exclusive of the buildings and improvements thereon, within the benefit district, if any benefit is found to accrue thereto; and in case the total of such benefits, including the benefits assessed to the city at large, equals or exceeds the compensation assessed, or to be paid for the property purchased, taken or damaged. then said jurors shall...