City of St. Louis v. Meintz

• Citation: 107 Mo. 611,18 S.W. 30
• Parties: CITY OF ST. LOUIS v. MEINTZ et al.
• Decision Date: 22 December 1891
• Court: United States State Supreme Court of Missouri

18 S.W. 30

107 Mo. 611

CITY OF ST. LOUIS v. MEINTZ et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

EMINENT DOMAIN — PROCEDURE — COSTS AGAINST MUNICIPALITY.

The provision of the charter of the city of St. Louis, art. 6, § 8, (Rev. St. 1889, p. 2121,) with respect to proceedings for the condemnation of lands for city purposes, that "the costs of proceedings up to and including the filing of the report of the commissioners shall be paid by the city," does not authorize the allowance as costs against the city of attorney's fees, charges of expert witnesses, and other similar expenses incurred by the land-owner in developing the character and extent of deposits of clay claimed by him to exist on lands sought to be appropriated for city purposes.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Proceedings by the city of St. Louis against Albert M. Meiutz and another for the condemnation of lands for city purposes. From a judgment for plaintiff, refusing to allow, as costs to defendants, certain expenses incurred by them, defendants appeal. Affirmed.

D. T. Jewett, for appellants. W. C. Marshall, for respondent.

BLACK, J.

This was a proceeding in the circuit court to condemn a parcel of land 60 feet wide by 755 feet in length, owned by the defendant Meintz and in the possession of defendant Sattler, for the purpose of extending the city system of waterworks. The defendants incurred large expenses in defending the suit and in endeavoring to satisfy the commissioners that the property contained beneath the surface deposits of valuable clays. The commissioners devoted some eight or ten days to the investigation of this claim, but in the end rejected it. They allowed the defendants $650 for the land taken. No exceptions were filed to the award, and it was confirmed by the court. The defendants, before this confirmation, moved the court to tax as costs in their favor the following demands: Services of Prof. Wheeler as mining engineer, $509; labor and services of Sattler, and moneys paid out by defendants, $703.25; attorneys' fees, $300. The court allowed the usual per diem fees of the witnesses, but excluded the other demands, and from that order the defendants appealed.

The charter under which this property was condemned provides: "The costs of proceedings, up to and including the filing of the report of the commissioners, shall be paid by the city; and, as to any costs caused by subsequent litigation, the costs shall be paid by the losing party. The commissioners may be allowed a reasonable compensation for their services." In support of the appellants' claim we are cited to Railroad Co. v. Lackland, 25 Mo. 515, and Leisse v. Railroad Co., 2 Mo. App 105, approved in 72 Mo. 562. In both cases the proceeding to condemn had been dismissed. At an early day it was a matter of doubt as to whether a company having the right to condemn property for public use could dismiss the proceeding after the damages had been assessed. This court held in the Lackland Case that the company could dismiss before confirmation of the commissioners' report; and other courts hold that the proceeding to condemn may be discontinued. No one will question the proposition that in such cases the company must pay all taxable costs of the suit. In some cases it has been held that, when the company discontinues the proceedings, it becomes liable for the damages sustained by the land-owner, and that the damages will include loss of rents and counsel fees; and to this class belongs the Leisse Case, reported in 2 Mo. App. In the Lackland Case and the case following it, it was held that the company, upon the discontinuance, must pay all costs and expenses, including...