City of St. Louis v. Moehlenhoff

• Decision Date: 17 March 1959
• Docket Number: 30038,Nos. 30037,s. 30037
• Citation: 322 S.W.2d 155
• Parties: CITY OF ST. LOUIS (Plaintiff), Appellant, v. Frederick MOEHLENHOFF (Defendant), Respondent, and Joseph Leo Levasseur and LaVerne M. Levasseur, His Wife, (Defendants), Appellants.
• Court: Missouri Court of Appeals

Page 155

322 S.W.2d 155

CITY OF ST. LOUIS (Plaintiff), Appellant, v. Frederick MOEHLENHOFF (Defendant), Respondent, and Joseph Leo Levasseur and LaVerne M. Levasseur, His Wife (Defendants), Appellants.

Nos. 30037, 30038.

St. Louis Court of Appeals, Missouri.

March 17, 1959.

Charles J. Dolan, Acting City Counselor, Oliver T. Johnson, Andrew J. Reis, Associate City Counselors, St. Louis, for City of St. Louis, appellant.

James E. Crowe, St. Louis, for Joseph and LaVerne Levasseur, appellants.

Ivon Lodge, St. Louis, for respondent.

DOERNER, Commissioner.

This case comes to the writer on reassignment. It was initiated as an action by the City of St. Louis for the assessment of damages and benefits by reason of a change in the grade of a portion of Robert Avenue, from the west line of Sharp Avenue to the east line of Morganford Road, a distance in excess of 1,600 feet. Two appeals are involved, which were briefed and argued jointly, one by the City, and the other by Joseph Leo Levasseur and LaVerne M. Levasseur, his wife.

By ordinances approved on June 25, 1954 and July 1, 1954, the City established the new grade of Robert Avenue, defined the district to be benefited, directed its Board of Public Service to let a contract for the work to be done, authorized the issuance of special tax bills in payment of such work, and directed its City Counselor to institute this action to have the damages to the abutting property ascertained and the special benefits thereto assessed. Pursuant thereto this action was instituted on October 15, 1954, naming the defendant Moehlenhoff (hereafter referred to as defendant) as one of the persons who owned or claimed an interest in a parcel of abutting property. What answer, claim, or other pleading the defendant may have filed, if any, is not shown by transcript.

Before any further action had been taken in this suit, the City proceeded to have the grading and paving done and upon its completion approved and accepted the construction on December 28, 1954. Subsequently, on March 4, 1955, this cause was referred to the City's Permanent Condemnation Commission, which, after affording the defendant and all other interested parties due notice and an opportunity to be heard, filed their report with the court below on June 14, 1955. In their report the commissioners assessed the damages sustained by the defendant at $10,000 and that of all other abutting owners, because of recorded grade waivers, at nothing. Both the City and the defendant filed exceptions to the award, the City contending that the damages were grossly excessive and defendant claiming that the amount allowed him was grossly inadequate.

These exceptions came on for hearing on February 14, 1957. At that time the City took the position, not that the award of damages was excessive, but that the commissioners had failed to assess against the property the special benefits which had resulted from the change of grade. Defendant dismissed its exceptions to the award, and objected to the City's contention on the grounds that it was not within the purview of the City's exceptions. Subject to this objection, the trial court heard evidence pro and con on the issue, and on March 25, 1957 overruled the City's exceptions. Thereafter an ordinance was adopted by the City appropriating the sum of $10,000 for the payment of the damages, and on August 8, 1957, the City paid that amount into the registry of the court. On the same day the trial court entered what is referred to in the record as a final judment, in which the court, after finding that the required ordinances and other procedural steps had been taken for the establishment of the new grade of Robert Avenue, found that the actual damages sustained by the defendant, '* * * the party owning or claiming an interest in and to the property described in Award No. 1 of said Commissioners' report, are $10,000.00, to which sum said party is entitled as aforesaid, which sum and award the plaintiff city herewith pays into the registry of the court to the use of the party entitled thereto * * *.'

On August 21, 1957, defendant filed his application for the payment to him of said sum of $10,000. In his application defendant alleged that the grade of the street had been changed and the street paved several months before the Commissioners had made their award; that at that time he was the owner of the fee simple title to the abutting property; that he had been required to pay a special tax bill in excess of $10,000 for the paving of the street; and prayed that an order be entered directing the clerk to pay to him the money held in the registry of the court. The City, on September 17, 1957, likewise filed an application, stating that on February 1, 1957, 'the owners of part of said Parcel No. 1 filed and recorded to [sic] the Office of the Recorder of Deeds of the City of St. Louis a plat of a subdivision entitled 'Viola Place' and in said plat the owners of said property waived any damages by reason of changing the grade of fifty feet of said subdivision abutting on Robert Avenue; that by reason of said waiver plaintiff is entitled to the same proportion of the grade damages awarded herein as the fifty feet bears to 657.25 feet, to wit, the sum of $760.74.'

The respective applications of the defendant and the City for distribution of the fund in the registry of the court came on for hearing on September 27, 1957. At that time Joseph Leo Levasseur and LaVerne M. Levasseur, his wife (hereinafter called the intervenors), appeared and filed a written motion, accompanied by a petition for partial distribution, asking leave to intervene. In their petition they pleaded that on May 20, 1957, they had become the owners of part of Parcel No. 1; that their land abutted on Robert Avenue a distance of 107.42 feet; and that they were thereby entitled to the distribution to them of a proportionate part of the $10,000 award, or $1,634.40. The trial court permitted the Levasseurs to intervene, subject to defendant's objection, and proceeded with the hearing.

The evidence showed that at the time the grading and paving was done, and until November 7, 1956, defendant owned all of the land in question, about 6.68 acres, which abutted on Robert Avenue for a distance of 667.25 feet. By a general warranty deed of that date defendant conveyed to Frederick O. Whaley and Viola Whaley, his wife, a part thereof containing 3.8 acres, which fronted on Robert Avenue for a distance of 257.42 feet. As part of the purchase price the defendant took back a deed of trust on the property, securing a note, the amount of which does not appear in the record. The Whaleys subdivided this tract, naming it Viola Place, and on February 1, 1957, filed with the Recorder of Deeds a plat of the subdivision. The plat introduced in evidence showed that there was but one street in the subdivision, called 'Whaley Place.' As the owner and holder of notes secured by the deed of trust defendant executed a certificate on the plat by which he joined in the creation of the subdivision and released from the lien created by the deed of trust '* * * the easements and dedications as shown on the above plat.' The dedication referred to, executed by the Whaleys, was as follows:

'The undersigned owners of the tract of land described in the foregoing surveyor's certificate have caused said tract to be surveyed and subdivided in the manner shown on the above plat, and shall hereafter be known as 'Viola Place'.

'Whaley Place is hereby dedicated to public use forever for street purposes. The right to establish grades on said dedicated street is hereby granted to the City of St. Louis, Missouri, and all claims for damages which may arise by reason of changing the present surface of said street to conform to said grades are hereby waived.

'The easements shown on the above plat are hereby granted to the City of St. Louis, Missouri, and the Metropolitan St. Louis Sewer District, as their interests may appear, for the purpose of installing and maintaining sewers and public utilities in, under, or over said easements.

'All lots in the above subdivision shall be sold subject to the building lines shown on this plat.

'In Witness Whereof, We have hereunto set our hands this the 7th day of December, 1956.

'Viola Whaley Frederick O. Whaley Owners' The evidence further showed that thereafter, on May 28, 1957, by a warranty deed, the Whaleys conveyed Lot 14 of Viola Place to the intervenors. According to the plat the south line of Lot 14 abuts Robert Avenue for a distance of 107.42 feet.

By its judgment the trial court denied the respective applications of the City and the intervenors for the...