City of St. Louis v. Dyer, 9259-9261.

• Citation: 56 F.2d 842
• Decision Date: 16 February 1932
• Docket Number: No. 9259-9261.,9259-9261.
• Parties: CITY OF ST. LOUIS v. DYER et al. SAME v. GRONE et al. SAME v. GRIESEDIECK et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

56 F.2d 842 (1932)

CITY OF ST. LOUIS v. DYER et al.

SAME v. GRONE et al.

SAME v. GRIESEDIECK et al.

Nos. 9259-9261.

Circuit Court of Appeals, Eighth Circuit.

February 16, 1932.

J. B. Steiner, of St. Louis, Mo. (Julius T. Muench and G. William Senn, both of St. Louis, Mo., on the brief), for appellant.

Charles D. Long, of St. Louis, Mo. (Rassieur, Long & Yawitz, of St. Louis, Mo., on the brief), for appellees Grone, Griesedieck, and others.

Arnold Just, of St. Louis, Mo. (McDonald & Just, of St. Louis, Mo., on the brief), for appellee Dyer and others.

Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

March 10, 1930, the United States filed in the district court for the Eastern district of Missouri its petition in condemnation of certain property in the block bounded by Eleventh, Twelfth, Market, and Walnut streets, in the city of St. Louis, Mo., for a new Federal Building site. Appellant and all of the appellees were parties to this suit. The viewers appointed made their award, and January 3, 1931, judgment was entered in said cause decreeing condemnation and the right thereof in the plaintiff; that the United States did by those proceedings acquire the title in fee simple to the premises described in the petition, and that every interest therein should vest in said sovereign plaintiff, the United States of America, free and clear of any and every right, title, and interest therein, and of all claims, liens, and incumbrances of every kind, nature, and description. The court further entered judgment, in favor of parties to the suit whose property was taken, in such sums as were awarded by the viewers, and found to be due upon hearing of exceptions to the viewers' report. The total amount of this judgment, aggregating $1,069,027.32 in solido, was paid into the registry of the court February 12, 1931, and the court entered its order of satisfaction February 13, 1931. All of the appellees petitioned the court for payment to them of their respective awards.

The city of St. Louis had, prior to the filing of the government condemnation suit aforesaid, instituted proceedings in the circuit court of the city of St. Louis in connection with two improvement projects, known as the "Market Street Widening" and "Memorial Plaza Opening." These proceedings were still pending, and had never been reduced to judgment when this appeal was heard. It was admitted at the trial that no physical work had then been done upon either of these projects, nor was there any evidence that any benefit therefrom, which might accrue to the property, was considered or included by the court or the viewers in arriving at the amounts of the awards, nor that the value of the property had been enhanced by either of these projects. However, commissioners in these proceedings had been duly appointed by the circuit court of St. Louis having jurisdiction thereof, and said commissioners had fixed the benefit or taxing district, which included property of appellees involved in the condemnation case of the government for the taking of which, compensation was awarded by the judgment of January 3, 1931. Said commissioners had duly filed their report assessing special benefits against said property of appellees in connection with the two municipal improvement projects above described.

February 13, 1931, contemporaneously with the order to satisfy judgment, the city of St. Louis filed, in the district court having jurisdiction of the federal condemnation suit, its motions to have withheld, out of the payments to be made to the various appellees involved, the amount of these benefit assessments, not yet reduced to judgment, in connection with the said "Market Street Widening" and "Memorial Plaza Opening." These motions were duly heard by the district court and overruled. This action by the court, being final in its nature, is the subject of these appeals. The question for determination is thus well stated in the brief of appellees: "The sole issue here involved is whether special benefit assessments not yet reduced to judgment and, therefore, not yet liens, are collectible out of the fund paid into court herein for the benefit of the property owners under the judgment of the United States District Court."

The cases of the several appellees were consolidated by this court for purposes of argument, and it was stipulated and ordered that the cases might be submitted upon one printed transcript.

The contentions of appellant, in substance, are that the government, in condemning private property, stands in the position of a voluntary purchaser, pendente lite, and is subject to prior condemnation suits of the city; that the publication of the benefit or taxing district in the two city condemnation cases established the priority of the city's claims; that a condemnation proceeding under the city charter is one suit, even though powers both of eminent domain and of taxation are exercised; that the award of damages paid into the registry of the district court took the place of the land, appellees having in the fund the same interest they had in the land; and upon the failure of appellees to file exceptions to the assessment of special benefits made by the commissioners in the two municipal projects within the time allowed by law, certain rights in the nature of potential liens arose in favor of the city.

The matter at issue must be determined by the law of the state of Missouri. Fortunately the decisions of its courts of last resort furnish not uncertain guidance to a proper solution. Article 21 of the Charter of the City of St. Louis, adopted August 29, 1914, has to do with condemnations of private property for public use. After providing for the institution of such proceedings by ordinance, for the appointment of commissioners to fix the benefit or taxing district, and to assess benefits and damages therein after notice to parties whose property is affected, for the report of such commissioners, and for the hearing and disposition of exceptions thereto, section 8 of article 21 provides as follows: "The court upon approving the commissioners' report shall render final judgment thereon reciting the report and adjudging that the city have and hold the property petitioned for, describing the same, for the purposes specified, upon payment of the damages less the benefits assessed in each instance; that so much of the report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment, and prior to all other liens thereon; and that the city recover the respective benefits in excess of damages assessed in each instance against...