City of Kansas v. Morse

• Decision Date: 29 June 1891
• Citation: 16 S.W. 893,105 Mo. 510
• Parties: CITY OF KANSAS v. MORSE et al.
• Court: Missouri Supreme Court

16 S.W. 893

105 Mo. 510

CITY OF KANSAS v. MORSE et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

PUBLIC IMPROVEMENTS — DAMAGES AND BENEFITS — PRACTICE.

1. Under the charter of Kansas City, art. 7, § 4, providing that in condemnation proceedings the mayor may be authorized to take relinquishments of property without claims for damages, on condition of exemption from payment of benefits, it is immaterial whether the contracts of relinquishment are signed by the mayor before or

after an ordinance passed by the council authorizing him to make them.

2. Under the same section, providing that the agreements made by the mayor as to relinquishments are to be reported to the council with the verdict of the jury in the condemnation proceedings, a report reading, "I herewith submit for your consideration the proceedings and verdict taken and had," is broad enough to cover the relinquishments taken by the mayor, and an ordinance confirming the "verdict and proceedings" confirms the relinquishments.

3. Where there are buildings on the land sought to be condemned, they must be paid for as part of the realty, and the cost of their removal to other land forms no part of the damages to be assessed to the land-owner.

Appeal from circuit court, Jackson county; R. H. FIELD, Judge.

F. L. Wilkinson, for appellant Vineyard. Pratt, Ferry & Hagerman, for appellants Morse, Adams, and Thayer, and Kansas City Belt Ry. Co. R. L. Yeager, W. S. Cowherd, and Frank Dexter, for respondent.

BLACK, J.

This proceeding was commenced before the mayor of the city of Kansas, to condemn property for street purposes. The important facts are these: An ordinance approved on the 7th October, 1887, provided for opening Main street from Twentieth street to the Grand boulevard. It established the width of the street, and fixed the boundaries of the benefit district. Pursuant thereto, the mayor made an order for a jury to assess damages and benefits, and the proceedings were continued from time to time. While the proceedings to condemn were pending, the mayor, as party of the second part, made two contracts in the name of the city, bearing date the 23d May, 1888, one with the Kansas City Belt Railway Company, and the other with Adams, Thayer, and Morse, whereby the parties of the second part relinquished the land owned by them, sought to be condemned, on condition of exemption from payment of benefits, and on certain other conditions. Afterwards, and on the 28th day of May, 1888, the common council passed an ordinance, which is in these words: "That the mayor be, and he is hereby, authorized to accept from the Kansas City Belt Railway Company and Charles F. Adams, Nathaniel Thayer, and C. F. Morse the relinquishment of the land necessary for the opening of Main street, as provided by ordinance * * * approved October 7th, 1888, and to accept and bind the city of Kansas to keep and comply with the terms and agreements contained in said relinquishment." Thereafter the mayor impaneled a jury, and on the 14th June, 1888, the jury returned a verdict. This verdict describes the parcels of land owned by the Belt Railway Company, Adams, Thayer, and Morse, and allows them one dollar as damages for each parcel taken, and assesses them with one dollar for benefits on each parcel not taken. The verdict also assesses full damages in favor of and benefits against various other parcels of land owned by other persons. On the same day the mayor addressed a communication to the council, saying: "I herewith submit for your consideration the proceedings and verdict taken and had by the city of Kansas under ordinance * * * approved October 7th, 1887." On the 27th of June, 1888, the common council passed an ordinance confirming "the verdict and proceedings" so reported to them. Thereafter four property owners, not before named, took the proceedings to the circuit court by appeal. The transcript filed in the circuit court did not contain the contracts of relinquishment before mentioned, nor did it contain the ordinance of May 28th, authorizing the mayor to accept the same. The Belt Railway Company, Adams, Thayer, and Morse made proof of the existence of these contracts and the ordinance; but the circuit court declined to order them up as part of the record, when requested so to do, and refused to permit them to be introduced in evidence, and proceeded to assess damages and benefits, disregarding the contracts and ordinances. From these rulings the railway company, Adams, Thayer, and Morse appealed. It is sought to justify these rulings on the ground, among others, that the mayor and the contracting parties did not pursue the method pointed out by the charter.

According to section 4 of article 7 of the city charter, when one or more owners of property to be taken shall propose to relinquish such property without claims for damages, on condition of exemptions from payment of benefits, the mayor may be authorized to compromise and agree with such persons as equity may seem to require, "and proceed to condemn such other property as may not be relinquished, * * * and report his proceedings to the common council, anything contained in this act to the contrary notwithstanding." Section 5 provides: "The mayor shall, after the rendition of the verdict, report the same, together with the proceedings under the last section, to the common council; and, if the same be not confirmed within sixty days from the making of such report, the proceedings and verdict shall be void," etc. Appeals are to be taken within 20 days from the time the verdict is confirmed by the council. As the relinquishments bear date the 23d May, 1888, it is insisted the mayor had no authority to bind the city when he signed them. From the ordinance passed on the 28th May, 1888, it is very clear that these contracts had then been prepared, and...