City of St. Louis v. Lang

• Decision Date: 03 December 1895
• Citation: 131 Mo. 412,33 S.W. 54
• Parties: CITY OF ST. LOUIS v. LANG et al.
• Court: Missouri Supreme Court

33 S.W. 54

131 Mo. 412

CITY OF ST. LOUIS v. LANG et al.

Supreme Court of Missouri, Division No. 2.

December 3, 1895.

CHANGING STREET GRADE — PROCEEDING TO ASSESS DAMAGES — PETITION — EXCEPTIONS — ANSWER — DEFAULT JUDGMENT — DAMAGES.

1. The petition in a proceeding under Rev. St. §§ 1815-1821, to assess damages and benefits for change of street grade, by alleging that a certain ordinance, defining the limits within which private property had been or would be benefited by the grading of the street, was "duly enacted," inferentially states (which is sufficient as against a motion in arrest) the passage of an ordinance for the grading of the street; the charter providing that no grading of a street can be ordered except by ordinance, and the court being required by the constitution and the charter to take judicial notice of the provisions of the charter.

2. Under Rev. St. § 1818, providing that the report of commissioners to assess damages and benefits for changing grade of street may be reviewed by the court on exceptions filed within 10 days after filing thereof, exceptions filed thereafter are properly stricken out.

3. Though, in a proceeding under Rev. St. § 1815, to assess damages and benefits for change of street grade, defendant may file answer, — defendants, under section 2042, having the right, whatever the form of action or method of procedure, — it must be filed seasonably, and leave to file answer, not asked till after expiration of time to file exceptions, is properly refused.

4. A judgment in a proceeding under Rev. St. §§ 1815-1821, to assess damages and benefits for change of street grade, for want of an answer filed in due time, will have the same force and effect as in any other proceeding.

5. Damages for change of street grade will be assessed according to the provisions of the constitution, which went into effect after the passage of the ordinance establishing the changed grade, but before any action was taken to carry the ordinance into effect.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Proceeding by the city of St. Louis against Farcas Lang and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Broadhead & Hezel, for appellants. W. C. Marshall, for respondent.

SHERWOOD, J.

On March 18, 1892, the plaintiff city instituted this proceeding, under sections 1815 to 1821, inclusive, Rev. St. 1889, to assess the damages and benefits caused by changing the grade of Hickory street between Mississippi and Armstrong avenues. Prior to that the city, on the 18th of January, 1875, by Ordinance No. 9295, entitled "An ordinance to establish the grade of Hickory street between Mississippi avenue and Armstrong avenue," fixed the grade by establishing the same at a point 245 feet west of the west line of Mississippi avenue, at an elevation of 80 feet above the city directrix. Subsequently thereto, to wit, on October 31, 1891, the city passed an ordinance (No. 16,454) whereby were defined the limits within which private property would be benefited by the grading of Hickory street, as aforesaid. Upon institution of this proceeding all persons who would suffer damages, and all persons within the benefit district whose property would be benefited, were made parties defendant, and properly brought into court. Thereafter such steps were taken in conformity with law as resulted in the filing of a report by properly appointed commissioners. More than 10 days after the filing of this report, defendants filed exceptions to the report, which exceptions were stricken out, on motion of plaintiff, because not filed in time, as required by section 1818, Rev. St. 1889. Thereupon defendants asked leave to file an answer, but the court refused to grant such leave. Subsequent to this the trial court approved and confirmed the report of the commissioners, and because of the failure of defendants, within the time allowed by law, to file any answer to the petition, or any exceptions to the report of the commissioners, the averments of the petition were by the lower court taken as confessed, and judgment entered accordingly. The petition, after appropriate reference to Ordinance 9295, establishing the grade of Hickory street as heretofore stated, proceeds thus:

"That thereafter, to wit, on the 31st day of October, 1891, there went into force and effect an ordinance of said city of St. Louis, duly enacted by the municipal assembly thereof, upon the unanimous recommendation of the board of public improvements, in writing, and approved by the mayor of St. Louis, an ordinance to define the limits within which private property has been or will be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue, which ordinance is numbered 16454, and is in words and figures following, to wit. (16454):

"`An ordinance to define the limits within which private property has been or will be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue.

"`Be it ordained by the municipal assembly of the city of St. Louis, as follows:

"`Section 1. The real estate situated within the following boundaries is hereby declared to have been or to be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue to the grade established by ordinance nine thousand two hundred and ninety-five, approved January eighteenth, eighteen hundred and seventy-five, to wit,' etc.

"Plaintiff further states that it is necessary to grade Hickory street between Mississippi and Armstrong avenues to conform to the grade established by the ordinance aforesaid, and for the purpose of constructing and improving said street; that the owners of the property affected by said improvement have refused to consent thereto, and that plaintiff is unable to agree with said owners for the proper compensation for the damages done or likely to be done or sustained by reason of such improvement; and that, by reason of the legal incapacity of the minor defendants herein, such compensation cannot be agreed upon. Plaintiff further states that the general nature of the work of improvement aforesaid is to conform the grade of said Hickory street between said Mississippi avenue and Armstrong avenue to the other portions of Hickory street, and in so doing to fill in some places and to cut down in other places, thereby changing the natural condition of the land. Plaintiff further states that the defendants above named are in actual possession of the premises to be affected, either by being damaged or by being benefited, or have a title to said premises appearing of record, and lying within the benefit district established by said Ordinance No. 16,454."

The sections of the statute already referred to, which control this cause, are as follows: Section 1815 provides that: "In all cases where the proper authorities in any city in this state, shall have graded or regraded, or may hereafter grade or change the grade or lines of any street, or alley, or in any way alter or enlarge the same, or construct any public improvement, thereby causing damage to private property for public use within the meaning of sec. 21, of art. 2, of the state...