City of St. Charles v. Schroeder, 33884

• Citation: 474 S.W.2d 55
• Decision Date: 23 November 1971
• Docket Number: No. 33884,33884
• Parties: CITY OF ST. CHARLES, a Municipal Corporation, Plaintiff-Respondent, v. Robert SCHROEDER et al., Defendants, Harold Berger, et al., IntervenorDefendants-Appellants.
• Court: Missouri Court of Appeals

Page 55

474 S.W.2d 55

CITY OF ST. CHARLES, a Municipal Corporation, Plaintiff-Respondent, v. Robert SCHROEDER et al., Defendants, Harold Berger, et al. IntervenorDefendants-Appellants.

No. 33884.

St. Louis Court of Appeals, Missouri.

Nov. 23, 1971.

J. B. Carter, Paul Gordon Latt, Clayton, for defendants-appellants.

Davis & Hannegan, Ervin D. Davis, St. Charles, for plaintiff-respondent.

DOERNER, Commissioner.

By this action, brought under what is commonly known as the Sawyer Act, Section 71.015, RSMo 1969, V.A.M.S., the City of St. Charles sought a declaratory judgment authorizing it to proceed with the annexation of 5843 acres adjacent to the present city limits. The trial court sustained the City's petition and entered the judgment prayed for, and the above named intervening defendants, hereafter referred to as the defendants, appealed.

The map incorporated herein and a brief statement of the events preceding the institution of the suit will facilitate an understanding of the issues presented.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence reveals that prior to 1960 the City of St. Charles, a city of the third class, contained 2959 acres. In that year the City annexed an area of 2316 acres. Thereby it almost doubled its size to a total of 5275 acres, contained in the area marked 'A' on the foregoing map. On November 27, 1967, the City adopted two resolutions which together proposed the annexation of additional land with a combined acreage of 10,908 acres. Separate petitions for declaratory judgments were filed by the City on January 4, 1968, in the Circuit Court of St. Charles County, each of which dealt with different areas. By the first action, assigned Cause Number 5888, the City sought the court's approval of the annexation of 5065 acres located south of Interstate Highway 70, designated on the foregoing map as area 'B'. By the second action, given Cause Number 5889, the City sought authorization by the court for the annexation of a total of 5843 acres contained in the parts marked C--1, C--2 and C--3, frequently referred to in the evidence, respectively, as the cone-shaped area, the triangle area, and the bottom land area.

In general, the City as presently constituted sits on high ground, overlooking the Missouri River. From the record it appears that the cone-shaped area, C--1, is similarly situated topographically. The triangular area, C--2, contains a subdivision named Mamelles Hills, located on high, hilly land. The Wabash Railroad, which follows the present northern city limits, is built at the foot of bluffs along which the Mississippi River once flowed. From these bluffs toward the present location of the river the area marked C--3, containing about 3000 acres, is bottom land. It is undisputed that except for about 700 acres used for an airport virtually all of the 3000 acres are presently used for agricultural purposes.

With that background in mind we turn to the consideration of the first of the two points relied on by defendants in this appeal. Section 71.015 provides that the action brought thereunder, '* * * shall be a class action against the inhabitants of such unincorporated area * * *.' Civil Rule 52.09, V.A.M.R., requires that the petition in a class action shall allege such facts as shall show that '* * * the defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class. The plaintiff shall be required to prove such allegations, * * *.' The gist of defendants' initial point is that the 21 persons named as defendants, both in the City's original petition and in its second amended petition, on which the case was tried, were not fairly chosen and did not adequately represent the class of persons within the area the City proposed to annex.

We are of the opinion that there is merit in defendants' complaint. The only evidence as to the manner in which the 21 original defendants were chosen was the testimony of Ervin D. Davis, the attorney for the City. He testified that '* * * I personally chose those names from a list of names that was furnished to me as being property owners within the proposed annexed areas. I simply chose names at random with the reservation that I tried to choose some who were home owners within a subdivision and some who I felt to be owners of a tract of land in contrast to one lot. * * *' He also stated that Gerald O. Denningmann, who with his wife Joy was named as an original defendant, was the owner of a tract but that he didn't know where it was located. Mr. Davis further said that Al Schroeder, similarly named, was the developer of the subdivision called Mamelles Hills. And that Eugene Glosier and Betty Glosier, his wife, who were likewise named, also owned two properties, one near Highway 94 and the other near the Cave Springs overpass.

Mr. Davis was not asked, nor did he state, who furnished him with the list of property owners from which he chose the 21 original defendants. Of greater importance, he was not asked, nor did he state, whether the list from which he made his selections included the names of all of the landowners in the area proposed to be annexed. In that connection we note that attached to the City's second amended petition as an exhibit was a list of names of about 250 persons alleged to be property owners in the unincorporated area. We also note that a similar list of names of about the same number of persons was identified as a list of property owners in the unincorporated area and was admitted into evidence as City's exhibit number 125. A comparison of the two lists, while not exhaustive, indicates that the names on both lists are substantially the same. A careful examination of both does reveal that the names of the 21 persons named as defendants do appear on both lists, and, conversely, that no one was named as an original defendant whose name was not on such lists. There are references in the transcript to 1500 residences existing in the unincorporated area at the time the case was tried, in September 1969, and the City's witness Edward Maran, a consulting engineer, expressed the opinion that '* * * in the range of 4000' persons lived in that area at that time.

An analysis of the testimony of intervening defendant Paul Griesenauer, uncontradicted in any manner, discloses that the properties owned by the named defendants were concentrated in a relatively narrow geographic area. Eight of such defendants, Robert Schroeder, Alfred Schroeder, James Doyle and Thelma Doyle, his wife, Jim R. Moore and Carolyn M. Moore, his wife, and Carl F. Walther and Olga E. Walther, his wife, resided or owned property in the subdivision named Mamelles Hills. Three, Mary B. Wright (deceased at trial time), and Gerald O. Denningmann and Joy Denningmann, his wife, resided in the Riverside Heights subdivision. Four, Marvin C. Wilson and Margaret E. Wilson, his wife, and Winford Lewis and Nola M. Lewis, his wife, lived in the Twill Manor subdivision. Two, Theodore Bruere and Lillian Bruere, his wife, resided on Fox Hill Road. Four resided within the incorporated limits of the City of St. Charles but owned land in the unincorporated area; Eugene Glosier and Betty Glosier, his wife, on both Highway 94 and near the Cave Springs overpass; and Jerome A. Burkemper and Virginia Burkemper, his wife, in an unspecified area. We note that both St. Charles Hills and Hinemanns are named in both of the foregoing lists as subdivisions, and that throughout the lengthy transcript there are references in the testimony to numerous other subdivisions which existed in the area proposed to be annexed. Yet not one person named in St. Charles Hills, Hinemanns or any of the other subdivisions referred to in the evidence was named as a defendant. Of greater significance, so far as we can determine from the record before us, not one person who resided or owned land in the 3000 acres which comprises the area marked C--3, the bottom land, was named as a defendant. We make that qualification, so far as we can determine from the lengthy record, (of 1228 pages and 173 exhibits) for the reason that time and time again, in locating a place, the witnesses as well as counsel would point to a place on City's exhibit 124, a very large aerial photograph, and designate it as 'here' without any further explanation of its location. Such a practice may be sufficient to advise the trial court of the place in question, but it...