City of St. Louis v. Chas. F. Querl Lumber Co.

• Decision Date: 04 March 1919
• Docket Number: No. 19759.,19759.
• Citation: 277 Mo. 167,210 S.W. 21
• Parties: CITY OF ST. LOUIS v. CHAS. F. QUERL LUMBER CO.
• Court: Missouri Supreme Court

210 S.W. 21

277 Mo. 167

CITY OF ST. LOUIS v. CHAS. F. QUERL LUMBER CO.

No. 19759.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Appeal from St. Louis Circuit Court; Kent Koerner, Judge.

Condemnation proceedings by the City of St. Louis against the Chas. F. Querl Lumber Company and others. From judgment of condemnation, the named defendant appeals. Affirmed.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellant.

Charles H. Daues, City Counselor, and Lambert E. Walther, both of St. Louis, for respondent.

FARIS, J.

The city of St. Louis, pursuant to an ordinance duly passed in that behalf, instituted proceedings against appellant and others as defendants to condemn certain parcels of land for the purpose of widening a street called Blase avenue.

To this end a board of commissioners was appointed by the circuit court, who proceeded pursuant to law to ascertain and report their findings of the damages which would be sustained by the appropriation of the property of defendants in the proceedings for the use stated. These commissioners found, and so reported to the circuit court, that appellant was the owner of a certain parcel of the land sought to be condemned for street purposes, and that it would sustain damages in the sum of $2,429.46 by the appropriation thereof. The above report was filed in the circuit court on the 29th day of September, 1913.

Thereafter certain persons, who were the owners of property in the benefit district (which property was liable to assessments for the payment of the awards in favor of appellant and others), filed exceptions to the report of the board of commissioners. The grounds of these exceptions are self-explanatory, and, so far as the same are pertinent to the questions raised on this appeal, read thus:

"That the commissioners erred in awarding to the Charles F. Querl Lumber Company any damages because a strip of land twenty-five feet in width, and having a depth of five hundred twenty feet one and three-eighth inches eastwardly from the east line of Broadway, for the taking of which damages were awarded to the said company by the commissioners, had been dedicated to public use for highway purposes, and had been continuously used as a public highway for more than ten years prior to the institution of this suit."

The above exceptions came on for hearing before the circuit court on the 28th day of January, 1914, and at the December term, 1913, of the circuit court, and were tried by the court sitting as a jury. On said trial the court sustained the exceptions of the special taxpayers upon the specific ground that the reasons therefor above set out were as a matter of fact true, and thereupon set aside the report of the commissioners. To this action of the trial court appellant neither excepted at the time nor filed any term bill of exceptions. On setting aside the report of the commissioners, the circuit court, as he is by the charter of St. Louis in his discretion permitted to do, ordered "that a new appraisement and assessment be made herein," and to this end appointed a new board of commissioners, who duly qualified, and on June 4, 1914, and at a term subsequent to that at which the exceptions supra were sustained, filed their report. The latter report, following and being governed by the finding of the circuit court, touching the dedication by prescription of appellant's land, awarded to appellant only nominal damages, to wit, one dollar, for the appropriation thereof.

Upon the coming in of the latter report appellant filed exceptions thereto, which, so far as they are pertinent to the point confronting us, read thus:

"That said commissioners also erred unjustly and illegally in holding and finding that the parcel of ground twenty-five feet in width and five hundred and twenty feet and one and three-eighths inches in depth, belonging to this defendant, and adjoining Blase avenue, thirty feet wide, is a public highway by virtue of adverse user and prescription; and that said commissioners also erred and unjustly and illegally held and found that this defendant was and is entitled to damages of only one dollar for the appropriation thereof, whereas said parcel of ground was not and never has been a public street, but is the property of this defendant, and Is of a value largely in excess of one dollar; and the said commissioners...