City of St. Louis v. Glasgow

• Court: Missouri Supreme Court
• Writing for the Court: Woodson
• Citation: City of St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596 (Mo. 1914)
• Decision Date: 03 January 1914
• Parties: CITY OF ST. LOUIS v. GLASGOW et al.

162 S.W. 596

254 Mo. 262

CITY OF ST. LOUIS v. GLASGOW et al.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

1. EMINENT DOMAIN (§ 28)—ACQUISITION OF PROPERTY BY MUNICIPALITY — PURPOSES — CHARTER PROVISIONS.

An ordinance of a city which provides for the condemnation of described land "for the purpose of protecting the water supply of the city" is enacted under the authority of the charter making the city liable for all damages sustained by any one in his property by the taking thereof for purposes necessary for the efficient operation of waterworks, and the city seeking to condemn the land, must comply with the charter.

2. EMINENT DOMAIN (§ 167) — PROCEEDINGS TO ACQUIRE PROPERTY — COMPLIANCE WITH STATUTORY PROVISIONS.

The state or any of its governmental subdivisions with authority to condemn property must, when attempting to exercise the power, proceed in strict compliance with all the provisions of the statute authorizing the proceeding.

3. EMINENT DOMAIN (§ 170) — PROCEEDINGS TO CONDEMN PROPERTY—CONDITIONS PRECEDENT.

A city operating under a charter which authorizes it to condemn property, only where the amount of compensation to be paid the owner cannot be agreed on by the parties, may not maintain condemnation proceedings without first showing its inability to agree with the owner as to compensation, and an attempt on the part of the city to agree with the owner thereon is a prerequisite to the jurisdiction of the court to try condemnation proceedings.

4. EMINENT DOMAIN (§ 170)—PROCEEDING TO CONDEMN PROPERTY — CONDITION PRECEDENT.

St. Louis city charter, authorizing the city to institute proceedings to condemn land where the amount of compensation to be paid the owner cannot be amicably agreed on between the parties, applies to a case where property is sought to be taken, and is not limited to cases involving consequential damages only.

5. EMINENT DOMAIN (§ 170)—PROCEEDING TO CONDEMN PROPERTY — CONDITION PRECEDENT.

Though the St. Louis city charter authorizing condemnation proceedings, where the amount of compensation to be paid the owner cannot be amicably agreed on between the parties, does not designate the officer who shall negotiate for the purchase of real estate sought by the city, yet the city by necessary implication, if not by express grant, has power to carry on negotiations with the owner and agree on an amicable settlement, and must do so before it can maintain condemnation proceedings.

6. APPEARANCE (§ 18)—CONDEMNATION PROCEEDINGS —JURISDICTION—WAIVER.

Where the circuit court acquired no jurisdiction of proceedings by a city to condemn

property because of the failure of the city to show an attempt to agree with the owner as to the amount of compensation, the owner appearing and contesting the proceedings did not thereby waive the want of jurisdiction, and a judgment of condemnation was a nullity.

7. COURTS (§ 37) — JURISDICTION — SUBJECT-MATTER —WAIVER.

Want of jurisdiction of the court as to the subject-matter involved cannot be waived in any manner.

8. EMINENT DOMAIN (§ 238)—PROCEEDINGS— REVIEW.

Where the circuit court, in proceedings by a city to condemn land, did not acquire jurisdiction to try the case, questions involving the report of commissioners and other steps taken in the case will not be reviewed on appeal.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Proceedings by the city of St. Louis against Frank A. Glasgow and another to condemn land. From a judgment awarding condemnation, defendants appeal. Reversed, and cause remanded, with directions to dismiss.

The plaintiff, the city of St. Louis, a municipal corporation organized and incorporated under the laws of this state, and operating under a special charter, instituted this suit in the circuit court of said city against the defendants to condemn some 30 odd acres of land for the use of the waterworks of said city. Said land is particularly described in the pleadings. A trial was had which was not satisfactory to one of the defendants, and he duly appealed the cause to this court.

The facts are few and undisputed, except as to the value of the land taken and the extent of the damage done to that not taken. On December 30, 1907, the circuit court duly appointed Malcome McBeth, Charles J. Daley, and M. J. Murphy commissioners to assess the damages. On August 27, 1908, the commissioners filed their report with the clerk of said court, in which they assessed his damages for the land taken, the sum of $35,172, and that done to remainder by reason of the taking of the former, at the sum of $8,300. On the same day the report was filed, the city filed exceptions thereto. And on September 24, 1908, the court gave the city until October 15th to report the findings of the commissioners to the municipal assembly for approval or rejection.

On November 6, 1908, the defendants filed a motion to strike out portions of the third paragraph of plaintiff's exceptions, which paragraph reads as follows (the words embraced in brackets are those to which the motion was directed): "Because said commissioners, Charles J. Daley, Michael J. Murphy, and Malcolm Macbeth, were prejudiced in favor of defendants Allan C. Glasgow and Frank A. Glasgow, and prejudiced against the city of St. Louis, plaintiff in the above-entitled cause, and, because of said prejudice, awarded said Allan C. Glasgow and Frank A. Glasgow the sum of $43,372, this being $1,400 per acre for the 30.98 acres taken and the damage to the remainder, when said commissioners knew that the property of said Allan C. Glasgow and Frank A. Glasgow was only worth $21,686, or $700 per acre. [And said commissioners further knew that said Allan C. Glasgow and Frank A. Glasgow had, since the institution of this suit, and while the commissioners were hearing evidence on which to base their findings, offered to sell this piece of property to the city of St. Louis for $1,000 per acre, or $400 per acre less than the commissioners awarded said Allan C. Glasgow and Frank A. Glasgow. And the commissioners further knew that since the institution of this proceeding, and while the commissioners were at work hearing evidence on which to base their findings in this case, the city of St. Louis purchased thirty-two acres adjoining this property on the south from Albert Meints for $700 per acre, and that said land is similarly located and equal in value to the property owned by said Allan C. Glasgow and Frank A. Glasgow. And the commissioners further knew that the city of St. Louis had purchased since the institution of this suit, and while the commissioners were hearing evidence upon which to base their findings, the several tracts of land included in the tract originally proposed to be condemned under this proceeding, consisting of 80.20 acres, more or less, for the sum of from $600 to $750 per acre.] Because the commissioners erred in awarding $8,300, or any sum, to Allan C. Glasgow and Frank A. Glasgow as the damage done to the parcel of land hereinbefore described lying west of the St. Louis Water Works conduit and the Columbian Botton Road, said land being separated from the part sought to be condemned, and so situated as a part of the parcel of land sought to be condemned as to entitle the owners to damages for the condemnation and appropriation of the first described parcel." This motion was sustained by the court on the 6th of November, 1908.

On the same day the plaintiff filed certificates of the failure of the municipal assembly to act on the report of the commissioners with the clerk or the court, which, omitting the caption, are as follows:

"I, Thomas J. Leonard, clerk of the house of delegates, hereby certify that the house of delegates did, prior to and including October 15, 1908, fail to act upon the report of commissioners appointed by the circuit court for the Eighth judicial circuit in the matter of condemning certain property for the use of the waterworks of the city of St. Louis, pursuant to ordinance 23,153 of said city which said report was by the city counselor reported to the municipal assembly on August 26, 1908.

                    Thos. J. Leonard
                       "Clerk of the House of Delegates."
                

"I, George F. Mockler, secretary of the council, hereby certify that the council did, prior to and including October 15, 1908, fail to act upon the report of commissioners appointed by the circuit court for the Eighth judicial circuit in the matter of condemning certain property for the use of the waterworks of the city of St. Louis, pursuant to ordinance 23,153 of said city, which said report was by the city counselor reported to the municipal assembly on August 26, 1908.

     "George F. Mockler
                             "Secretary of the Council."
                

On December 4, 1908, the defendants filed in the cause, a motion to strike from the files the exceptions filed by the city on August 27, 1908, to the report of the commissioners. Said motion is as follows (formal parts omitted): "Now comes the defendant Frank A. Glasgow and moves the court to strike from the files the exceptions filed by the city counselor in the name and behalf of the city of St. Louis on the 27th day of August, 1908, to the report of the commissioners herein; and for ground of this motion, this defendant says that on the 24th day of September, 1908, this court gave to the said city reasonable time to report the result of the report of said commissioners to the municipal assembly for its information and approval, to wit, thirty days from said date; that the municipal assembly has failed to act upon said report and thereby as provided in section 9 of article 6 of the charter; the same is now to be deemed approved and all objections thereto waived so that the city of St. Louis is now without power to insist upon its said exceptions."

On the 17th of December, 1908, the court sustained the plaintiff's exceptions and set aside the report of the commissioners; to which said action of the court ...