City of Kansas v. Hill

• Decision Date: 31 October 1883
• Citation: 80 Mo. 523
• Parties: THE CITY OF KANSAS v. HILL et al., Appellants.
• Court: Missouri Supreme Court

80 Mo. 523

THE CITY OF KANSAS

v.HILL et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Tichenor & Warner and O. H. Dean for appellants.

The appellants were entitled to a jury of twelve men. Cons., art. 2, § 21; Vaughn v. Scade, 30 Mo. 600; Henning v. Railroad Co., 35 Mo. 408; State v. Van Matre, 49 Mo. 268; Kine v. Defenbough, 64 Ill. 292; Isom v. Railroad Co.,36 Miss. 312; Armstrong v. Jackson, 1 Blackf. 374. Appellants were entitled to a jury composed of six disinterested freeholders of the city; the jury that tried the cause was liable to pay a part of whatever might be assessed against the city, and hence was not impartial. Woodford v. Railroad Co., 2 Swan 436; M. A. L. R'y Co. v. Barnes, 40 Mich. 285; Dively v. City, 21 Iowa 565; Eberly v. Board, etc., 11 Mo. 247; Fine v. St. Louis, 30 Mo. 166; Fulwiler v. City, 61 Mo. 479; Rose v. City, 49 Mo. 509. The instruction number five, that the jury were not bound to find according to the evidence, and might make their finding from their observation alone, was erroneous. Redf. on R. R., p. 288; C. P. R. R. Co. v. Pearson, 35 Cal. 261; Chandler v. Jamaica, 122 Mass. 305; N. O. R. R. Co. v. Zeringue, 23 La. An. 522; Co. Ct. v. Griswold, 58 Mo. 199; Hannibal v. Schaubacher, 57 Mo. 588; W. K. C., etc., v. Waldro, 70 Mo. 630; Hosher v. Railroad Co., 60 Mo. 303; K. C., etc., v. Campbell, 62 Mo. 585. The court erred in refusing to admit the evidence to show that the property sought to be taken was diminished by the fact of its situation on Eighth street between east and west parts thereof already opened. Redf. on Railways, (5 Ed.) p. 290, note 22; City v. Bolton, 9 Heisk. 508; S. & E. R. R. Co. v. Doughty, 2 Zab. 595; Soulard v. City, 36 Mo. 544; Hosher v. K. C., etc., R. R. Co., 60 Mo. 303. Unlimited speculation is not allowed in arriving at the damages caused by condemnation proceedings. C. & P. R. R. Co. v. Francis, 70 Ill. 238; Hoenstein v. Railroad Co., 51 Pa. 87; Rogers v. Railroad Co., 35 Me 319. The record of the case was properly made up under rule 20 of this court.

J. Brumback for self and for the city.

Appellants were not entitled to a common law jury of twelve men. L. & F. P. Co. v. Pickett, 25 Mo. 535; Mills on Eminent Domain, §§ 91, 253, 254; People v. Justices, etc., 74 N. Y. 406; People v. Clark, 23 Hun 374; Cruger v. Railroad Co., 12 N. Y. 190; Pusey's Appeal,83 Pa. St. 67; Mitchell v. Railroad Co., 68 Ill. 288; State v. St. Louis, 52 Mo. 576; Mayor v. Long, 31 Mo. 369; Comm. v. Ryan, 5 Mass. 89; Comm. v. Worcester, 3 Pick. 461; Comm. v. Reel, 1 Gray 472; Uhrig v. St. Louis, 44 Mo. 458. Instruction number five was proper. C. B. & Q. R. R. Co. v. Railroad Co., 58 Ill. 273. The case is properly here under rule 20 of the Supreme Court.

Boggess, Cravens & Moore for Reid.

The objection by appellants to the number and qualifications of the jurors, was untenable. Kansas City Charter, § 6, (Acts of Legislature 1875, pp. 244, 249); Cons., art. 2, § 21; L. & F. R. R. Co. v. Pickett, 25 Mo. 535. There was no error in the exclusion of the evidence complained of. Its object was to diminish the value of land sought to be condemned, by reason of the fact that it was situated between the east and west ends of said Eighth street, where it might be taken when that street should be extended. There was no legal necessity to extend said street, hence it might never be done, and to admit such evidence was to prejudice the jury against the rights and interests of the land owners. Instruction number five, complained of by appellants, was properly given. 19 Wend. 695; Piper's Appeal, 32 Cal. 530; Pryor's Appeal, 19 Wend. 651, 659; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Caster v. Trust Co., 4 Zab. 730; Remy v. Municipality, 12 La. An. 500; Columbia, etc., v. Geisse, 36 N. J. 537. The court will not undertake to review the verdict of the jury, unless it is clear they proceeded on a wrong theory in arriving at their conclusion. St. Louis, etc., R. R. Co. v. Richardson, 45 Mo. 466; Miss. Co. v. Ring, 58 Mo. 491; Lee v. Railroad Co., 53 Mo. 178; Quincy v. Ridge, 57 Mo. 599.

RAY, J.

This is a proceeding begun by the City of Kansas, before the mayor of said city, under and in pursuance to its charter, (sections 1 to 6, inclusive, Acts of 1875, pp. 244, 249,) to condemn and appropriate certain real estate therein mentioned, to the use of the city for street purposes, and to extend Eighth street in said city from the west line of Delaware street to the east line of Wyandotte street, a distance of several hundred feet, and thereby connect the east and west ends of said street already opened, and thus render the same continuous, and to make just compensation therefor. The city ordinance passed for that purpose is as follows:

No. 19,350.

An ordinance to amend an ordinance to open and extend Eighth street from Delaware street to Wyandotte street.

Be it ordained by the Common Council of the City of

Kansas:

Section 1. That an ordinance No. 19,143, entitled “An ordinance to open an extend Eighth street from Delaware street to Wyandotte street,” approved April 1st, 1880; be and the same is hereby amended so as to read as follows, to-wit: Beginning at the intersection of the south line or T. H. Swope's second addition to Kansas City with the west line of Delaware street, thence west along the south line of said T. H. Swope's second addition to the east line of Wyandotte street, thence south sixty (60) feet; thence east and parallel with the south line of said Swope's second addition to the west line of Delaware street; thence northwardly sixty and six-tenths (60 6-10) feet to beginning, and all private property within said boundaries is hereby condemned for public use as a street, and just compensation therefor shall be assessed, collected and paid according to law.

Section 2. The common council hereby determines and prescribes the limits within which private property shall be deemed benefited by reason of the proposed improvement mentioned in the preceeding section, and be assessed and charged to pay just compensation therefor as follows, to-wit: Beginning at a point on the west line of Walnut street one hundred and twenty-three (123) feet north of the north line of Eighth street; thence west to a point on the east line of Broadway street one hundred and nineteen (119) feet north of the north line of Eighth street; thence south three hundred and twenty-nine (329) feet; thence east to a point on the west line of Walnut street one hundred and forty-six (146) feet south of the south line of Eighth street; thence north three hundred and twenty-nine (329) feet to the beginning.

Section 3. That the sum of $100 be, and the same is hereby appropriated out of the general fund to pay the costs and expenses of the proceedings necessary to condemn the private property so to be taken, and a part of such sum as may be assessed against the city of Kansas as benefits to the city and public generally by reason of opening and extending said street.

Approved May 4th, 1880.

C. A. CHACE, Mayor.

Attest, V. D. CALLAHAN, City Clerk. (Seal).

A map accompanying the proceedings, sets forth and exhibits the land to be taken, and the limits within which, “benefits” are to be assessed, to raise the money to pay for the same.

It seems there were eight or nine separate parcels of land sought to be taken and condemned, owned by about as many several parties; and about ninety or more separate and distinct parcels of land subject to be assessed with “benefits,” to raise the money to pay for the land so taken, and some hundreds of persons interested in the lands subject to be assessed with benefits, all of whom, are made parties defendants in the proceeding.

Such proceedings under the charter were had as resulted in a verdict from which an appeal was taken to the circuit court, where on a trial anew, before a jury of six men, there was a verdict and judgment from which the two Hulings on the one part, and said Swope on the other, have made separate appeals and thus brought the case here for review.

To this end separate “agreed statements,” under rule 20 of this court, were made between these appellants, the Hulings and said Swope on the one side, and the City of Kansas the plaintiff on the other, showing the cause of action, the defence and the evidence together with the rulings of the court thereon, and the exceptions saved to said rulings; which statements under said rule are here to be treated as the records in said respective appeals, and the causes therein considered and adjudged accordingly. By agreement in this court these two appeals or causes were argued and submitted together, and for convenience will in like manner be considered and determined together in one opinion.

The “agreed statement” in the Swope appeal, as far as material is as follows: The first exceptions saved were as follows:

“The cause coming on to be heard, it appeared that the judge of the court has chosen the following named persons as jurors in this case (here follow six names.) At this point defendant, Thos. H. Swope, objected to the jury because it consisted of but six men, and at the same time requested a jury of twelve men, but the court overruled his objection and denied his request, to which action of the court said defendant at the time excepted. Upon examination under oath, said jurors testified that they owned real estate and were freeholders in the City of Kansas, but had no interest in any real estate covered by this proceeding, at which point defendant, T. H. Swope, objected to the jury on the ground that they were not disinterested, but were directly interested, inasmuch as it would be to their interest to assess as little benefits as possible against the city, they and their property having to pay a portion of the same, which objection the court overruled, to which action of the court in so overruling said objection defendant, T. H. Swope,...