City of St. Louis v. Abeln

• Decision Date: 26 November 1902
• Parties: CITY OF ST. LOUIS v. ABELN et al.
• Court: Missouri Supreme Court

70 S.W. 708

170 Mo. 318

CITY OF ST. LOUIS v. ABELN et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

MUNICIPAL CORPORATIONS—CONDEMNATION SUIT—REPORT OF COMMISSIONER — EXCEPTIONS —EVIDENCE—TENANT—INTERRUPTION OF BUSINESS—COMMISSIONERS AS WITNESSES.

1. Where, in a condemnation suit for street improvements, the report of commissioners to determine the damages was contradicted only by the expert testimony of one witness, it was not error for the circuit court to refuse to set the report aside.

2. Where, in a condemnation suit for street improvements, the report of commissioners awarded a tenant for his interest in the property part of the damages assessed thereto, and on the exceptions to the report no evidence was introduced as to the exact extent of his interest, it was not error in the circuit court to overrule the exceptions on that point.

3. Where, in a condemnation suit for street improvements, the report of commissioners appointed to determine the damage to certain property awarded a tenant a certain sum for the interruption to his business, it was error to deduct such sum from the amount to be paid as damages sustained by the property.

4. Where, in a condemnation suit for street improvements, exceptions were taken to the report of commissioners appointed to determine the damages, it was not error to permit the commissioners to testify.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by the city of St. Louis against Wilhelmenia Abeln and others. From a judgment overruling exceptions to a commissioners' report, the above-named defendant appeals. Reversed.

Kehr & Tittmann, for appellant. B. Schnurmacher and Alex. Nicholson, for respondent.

VALLIANT, J.

A condemnation suit to widen Park avenue, in the city of St. Louis. The commissioners appointed by the circuit court to assess damages and benefits made their report, in which they said: "We have carefully examined the premises proposed to be taken for the establishment and opening of said avenue, and we have ascertained the actual value of the land and premises proposed to be taken, without reference to the projected improvement and the actual damages done to the property thereby, to be the sum of $13,767.00, and for the payment of such values and damages have assessed against the city the amount of benefit to the public generally, to wit, the sum of $507.15, and the balance, to wit, the sum of $13,259.85, against property within the district ascertained," etc. Of the total amount assessed as damages the commissioners awarded $8,438.60 to the Dillon estate, and the balance, $5,328.40, was awarded to the owners of what is known in this record as the "Abeln Property." This award is in these words: "The actual value of the land taken and actual damages sustained by Wilhelmenia Abeln for life, remainder to Wilhelmena Bernardina Abeln, Anna M. Abeln, Olivia A. Abeln, Anna M. B. Abeln, Frank Stephens, lessee, or the owner of the lot of ground situated," etc. (omitting the description), "we ascertain to be the sum of four hundred and fifty dollars, and for the improvements and special damage, as hereinafter stated, upon last-described property, we allow the sum of forty-eight hundred and seventy-eight dollars forty cents; total, fifty-three hundred and twenty-eight dollars and forty cents. Out of the above sum for improvements we award the sum of $1,021.00 to Frank Stephens, lessee, being for his interest in said improvements, to wit, $421.00, and $600.00 as special damage to his business." The commissioners assessed as benefits against the Abeln property $1,000. Out of the $5,328.40 awarded to the owners of the Abeln property the commissioners deduct $421 to be paid Stephens as damages to his interest in the improvements and $600 as damages to his business, and also $1,000 as benefits to the property; leaving for the Abelns $3,307.40. Appellant in due time filed exceptions to the report, which were to the effect that the damages awarded her were inadequate, the benefits assessed against her were excessive, and that the award to Stephens was illegal, because: First, he was not a party to the suit; second, the interruption to his business should not have been taken into account; third, the effect of the report was to pay Stephens out of the fund awarded to the Abelns. On the hearing of the exceptions the evidence showed that the taking of the land for the widening of the street as proposed would necessitate cutting off parts of the buildings on the Abeln lots, and there was the testimony of an architect (a witness for exceptors) tending to show that to take down the walls of the buildings and reconstruct them on the line proposed and reconstruct the sidewalks would cost $3,014, to which the witness added $2,350, the depreciation in value, according to his opinion, of the houses after reconstruction; total damages, $5,364. There was testimony on the part of the exceptors tending to show that their property would not be benefited. There was testimony to the contrary on this point in behalf of the plaintiff. Over the objection of appellant, two of the commissioners were called by the plaintiff, and allowed to testify as witnesses, and exception was taken. The court overruled the exceptions, and Mrs. Abeln took this appeal.

1. The learned counsel for appellant in their brief say: "On exceptions to the report the court is required to hear evidence. As it is bound to hear the evidence, it follows that it should be guided by it, and, if there is no conflict of evidence, effect must be given to the facts established by it." That is a very correct statement of the rule that should govern in the original trial of an issue of fact, when there is nothing to be considered but the evidence then adduced. But in a review of the commissioners' report on exceptions thereto the report itself is to be considered, and...