City of Kansas v. Butterfield

• Decision Date: 15 November 1886
• Parties: CITY OF KANSAS v. BUTTERFIELD.
• Court: Missouri Supreme Court

89 Mo. 646

CITY OF KANSAS

v.BUTTERFIELD.

Supreme Court of Missouri.

November 15, 1886.

Appeal from Jackson circuit court.

D. S. Twitchell, for respondent, City of Kansas. Frank Titus, for appellant, Butterfield.

NORTON, J.

The city of Kansas instituted proceedings to condemn certain private property of defendant for public use for the opening of Independence avenue from Grand avenue to Walnut street, in said city. A jury was impaneled, and rendered a verdict in the trial had before the mayor. From the verdict rendered defendant appealed to the circuit court of Jackson county where, on a trial de novo, a verdict awarding damages for the property to be taken was rendered, from which defendants have appealed to this court, and seek a reversal of the judgment because of the action of the court in giving, over their objection, the following declarations of law:

“(1) The jury will first ascertain the actual damage done to each person or corporation in consequence of the taking of their property, without reference to the proposed improvement, as the just compensation to be made therefor; and to pay such compensation you will assess against the city the amount of benefit to the city and public generally, inclusive of the benefit to any property of the city, and against the several lots and parcels of private property deemed benefited by the ordinances in evidence, by the proposed improvements, the balance of such compensation, and assess each of said lots or parcels of ground with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed.

“(2) You are instructed that in regard to the evidence before you of experts and others, concerning the value of the land proposed to be taken, and the actual damage done, you are not bound by the testimony of such witnesses, but may apply your own judgment and knowledge as to such values and damage, in arriving at your verdict, in connection with the testimony offered in the case at the trial.”

Section 3, art. 7, of the charter of the city of Kansas, directs the course to be pursued by a jury in condemnation proceedings, in awarding damages for property taken for a public purpose, and in assessing benefits derived from the improvements, and the first of the above instructions is in strict conformity with the charter provision. The learned counsel did not undertake in his oral argument, nor has he in his brief undertaken, to show wherein this instruction is erroneous, and we are unable to discover any valid objection to it.

In support of his objection to the second instruction counsel has cited us to the case of City of Kansas v. Hill, 80 Mo. 523. The judgment in the above case was reversed because the jury were instructed that they might wholly disregard the evidence of witnesses examined before them, and make their finding from their own observation alone. In the disposition of the question it is observed by RAY, J., who delivered the opinion: “The charter expressly provides that 'parties interested may submit proof...