City of Moberly v. Lotter

• Citation: 181 S.W. 991,266 Mo. 457
• Parties: CITY OF MOBERLY v. JULIUS H. LOTTER et al., Plaintiffs in Error
• Decision Date: 22 December 1915
• Court: United States State Supreme Court of Missouri

181 S.W. 991

266 Mo. 457

CITY OF MOBERLY v. JULIUS H. LOTTER et al., Plaintiffs in Error

Supreme Court of Missouri

December 22, 1915

Error to Macon Circuit Court. -- Hon. Nat M. Shelton, Judge.

Affirmed.

Warrick McCanne and A. Doneghy for plaintiffs in error.

(1) The circuit court never acquired jurisdiction over the property of any of the defendants, which would warrant it in appointing commissioners. The statute provides as a condition precedent that before the commissioners shall be appointed and before any sewers can be constructed that the council, by ordinance, define the district. R. S. 1909, secs. 9241, 9262. The description in the ordinance creating the sewer district to-wit: "thence west on the center line of Logan street to the east line of tract No. 96, thence north on the east line of tract No. 96," does not describe any land or monument with certainty. It does not give the number of feet or distance to the east line of tract No. 96, and does not give the name of the owner of said tract, nor the State county, city or town in which it may be found, and does not refer to any existing matter, map or deed from which the description can be made certain. Fox v. Courtney, 111 Mo. 147; State ex rel. v. Burroughs, 174 Mo. 707; O'Day v. McDaniel, 181 Mo. 534; Brewington v. Jones, 85 Mo. 60; Whaley v. Henchman, 22 Mo.App. 486; Mason v. Small, 130 Mo.App. 249; Hain v. Burton, 118 Mo.App. 577; Beckman v. Mepham, 97 Mo.App. 164; Weil v. Willard, 55 Mo.App. 378; Lamm v. Danville, 77 N.E. 423; Law of Real Property Conveyance, Jones, 285, sec. 339. The petition does not state facts sufficient to constitute a cause of action; the ambiguity, in description, is patent on the face of the ordinances, petition and publication, and they are therefore void, and cannot be helped by parol. O'Day v. McDaniels, 181 Mo. 534; 1 Am. & Eng. Ency. Law, p. 529; Campbell v. Johnson, 44 Mo. 332; Davis v. Davis, 8 Mo. 56; Mudd v. Dillon, 166 Mo. 110; Law of Real Property, Jones, p. 281, sec. 337; Lamm v. Danville, 77 N.E. 423. Title to real estate is not involved in this case for the simple reason that all that is acquired by the city and all that is parted with by the property owner is personal property and not real estate. The right acquired is an easement which all courts at all times have defined to be an incorporeal hereditament; a chattel interest pure and simple; a right issuing out of land less than a freehold; personal property, nothing more or less. A chattel real, it is true, but, nevertheless, personal property carved from the land; an interest that lies in grant and not in livery of seizin. 10 Am. & Eng. Ency. Law (2 Ed.), 399; Orchard v. Wright Co., 225 Mo. 414; Springfield Co. v. Schweitzer, 151 S.W. 129; 3 Am. & Eng. Ency. Law (1 Ed.), 164; Bouvier, Law Dic., Title, Easements; Bouvier, Law Dic., Title, Incorporeal. In the instant case the easement acquired by the city and the servitude imposed on the land is of a base character. The title, reversion, possession and use of the land (subject only to the right of the city to enter and lay its sewer pipe according to the plans and specifications named in the condemnation proceedings, and the right to thereafter enter, during the life of the easement, for the purpose of making necessary repairs, etc.), is all in the property owner. A servitude or incumbrance which would not be a breach of covenants of seizen in case of a deed made covenanting that the grantor was seized of the land. Kellogg v. Malin, 50 Mo. 496. The right acquired by the city is not an interest in the land but a mere easement which conflicts not in the slightest degree with the absolute proprietorship of the owner. Snyder v. Warford, 11 Mo. 514; Railroad v. Clark, 121 Mo. 180; Kellogg v. Malin, 50 Mo. 499. The owner can build on the land, pasture it or cultivate it so long as he does not interfere with the right to lay and repair the sewer. Mullins v. Metropolitan Co., 126 Mo.App. 507; 10 Am. & Eng. Ency. Law (2 Ed.), p. 429; Belcher Co. v. St. Louis Co., 82 Mo. 125. And, if the interest acquired is personal property and not real estate then the title to real estate is not involved and the jurisdiction is in the Court of Appeals. Constitution, art. 6, sec. 12. Any interest in land, less than a freehold, is personal property. Orchard v. Wright Co., 225 Mo. 414; Springfield Co. v. Schweitzer, 151 S.W. 129; Schouler's Personal Property, pp. 28, 29, 45; 1 Washburn, Real Property (3 Ed.), pp. 15, 22.

J. Elmer Ball, Arthur B. Chamier and Willard P. Cave for defendant in error.

(1) The judgment is regular upon its face, and there being no testimony preserved in a bill of exceptions all the legal presumptions are in favor of its regularity, and it should be affirmed. 3 Cyc. 275; Riggins v. O'Brien, 34 Mo.App. 613; State v. Dugan, 110 Mo. 145; State v. Mackin, 51 Mo.App. 309; State v. McCoy, 162 Mo. 382. (2) It is not even necessary to define the limits within which private property shall be assessed to pay for such improvements, where the city elects to pay the damages out of any funds available in the city treasury, as is done in this case. Sec. 9273, R. S. 1909. (3) The judgment in this case is in accordance with the report of the commissioners, and follows the language of Sec. 9271, R. S. 1909, and the use of the words "in fee" can be treated as mere surplusage, as the entire judgment shows the purposes and objects for which the real estate was taken were for public use. Sec. 21, art. 2, Constitution. (4) Condemnation proceedings of real estate for public purposes involve the title to land, and the Supreme Court has exclusive appellate jurisdiction therein. State ex rel. v. Rombauer, 124 Mo. 598; Miller v. Railroad, 162 Mo. 424; Baubie v. Ossman, 142 Mo. 499; Tarkio v. Clark, 186 Mo. 285; Kansas City v. Railroad, 187 Mo. 151; State ex rel. v. McCutchan, 119 Mo.App. 69. (5) "A writ of error is an original suit and not a mere continuation of a former suit." Macklin v. Allenberg, 100 Mo. 337; Kelmel v. Nine, 121 Mo.App. 718; 6 Am. & Eng. Ency. Law (1 Ed.), p. 812; Bank v. Jenkins, 104 Ill. 143; 2 Cyc. 510; Widber v. Superior Court, 94 Cal. 430. (6) "It [the Legislature] cannot impair the appellate or original power of the Supreme Court given by the Constitution." 7 Lawson's Rights, Remedies and Practice, par. 3783. Section 5, of the Constitutional Amendment of 1884, provides that: "In all causes or proceedings reviewable by the Supreme Court, writs of error shall run directly to the circuit courts," and that the Supreme Court shall have exclusive jurisdiction of such writs of error. (7) Section 3 of the Amendment of 1884 to the Constitution does not give authority to the Legislature to enact any laws vesting the court of appeals with jurisdiction, where same is denied by the Constitution itself. (8) The Legislature cannot by its act (Sec. 3938, R. S. 1909) give validity to a void writ of error issued by a court of appeals improvidently, where such court of appeals had no jurisdiction over the subject-matter. Section 5 of the Amendment of 1884 to Constitution. (9) The act of the clerk of the Kansas City Court of Appeals in issuing a writ of error to the Macon Circuit Court, was a nullity, because said Court of Appeals had no jurisdiction over the subject-matter of the action. Sec. 12, art. 6, Constitution; Kelmel v. Nine, 121 Mo.App. 720. "A writ of error will not lie in condemnation proceedings, brought before a circuit judge in vacation, as such proceedings are not according to the course of the common law." Railroad v. Morton, 20 Mo. 70; Lewis on Eminent Domain, sec. 806; Sweeney v. Tel. Co., 212 Ill. 475; Dorchester v. Wentworth, 31 N.H. 451; Edrington v. Nix, 49 Mo. 132.

WALKER J. Graves, J., dissents in separate opinion in which Woodson, C. J., concurs.

OPINION

In Banc.

WALKER, J.

-- This is a proceeding to condemn for sewer purposes certain lands of plaintiffs in error in the city of Moberly. A change of venue was granted to the circuit court of Macon county, where, upon a hearing, a judgment was rendered for the defendant in error on the 11th day of January, 1912. On the 2nd day of December, 1912, a writ of error was sued out in the Kansas City Court of Appeals and in compliance with the order of said court a copy of the final judgment in the cause was filed therein. Defendant in error thereupon filed a motion to quash the writ, alleging, among other things, that title to real estate was involved and that the Supreme Court alone had jurisdiction. Whereupon the Court of Appeals ordered the cause transferred to the Supreme Court. Defendant in error then filed in this court a motion to dismiss the cause, alleging that title to real estate was involved and hence the Court of Appeals had no authority to issue the writ of error by which the case was brought to that court; and, more than a year having elapsed since the final judgment and no writ having been sued out in the Supreme Court, that plaintiffs in error were not entitled to a review of the proceedings here. The motion was ordered to be considered with the case.

I. Is title to real estate involved in the determination of this case?

It is held that the condemnation of land for a right of way of a railroad or for a highway so affects the title to real estate as to bring that class of cases upon appeal within the jurisdiction of the Supreme Court.

A cursory view may lead to the conclusion that in this class of cases only the easement and not the fee is affected; but while the fee remains in the owners, their right to the use and exclusive possession of the lands in either lessened or taken away, and as a consequence the title is affected to the extent of the injury inflicted. A condemnation of lands for a public sewer may not, after the work is completed,...