City of St. Louis v. Senter Com'n Co.

• Decision Date: 16 April 1935
• Parties: City of St. Louis, Appellant, v. Senter Commission Company et al., Defendants, Luke E. Hart and Israel Treiman, Receivers of the Blanke-Wenneker Candy Company; Blanke-Wenneker Candy Company, Respondents
• Court: Missouri Supreme Court

82 S.W.2d 87

336 Mo. 820

City of St. Louis, Appellant, v. Senter Commission Company et al., Defendants, Luke E. Hart and Israel Treiman, Receivers of the Blanke-Wenneker Candy Company; Blanke-Wenneker Candy Company, Respondents

Supreme Court of Missouri

April 16, 1935

Rehearing Overruled April 16, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Charles M. Hay, John T. Hicks, James B. Steiner and Seward McKittrick for appellant.

(1) Damages in condemnation can be awarded only to parties having an estate in real property which is damaged. A lessee whose lease expires pending the condemnation suit, the lease containing no right of renewal, has no estate in the property which is damaged, and no award can be made. Schreiber v Ry. Co., 115 Ill. 340, 3 N.E. 427; Appointment of Park Commissioner, 1 N.Y.S. 768; Cincinnati v. Schmidt, 14 Oh. App. 426; Application of Mayor, etc., of N. Y. to Acquire Title to Pier No. 39, 62 A.D. 271; 2 Lewis, Eminent Domain (3 Ed.), p. 1258, sec. 719; In re State House, 21 R. I. 59; Zimmerli v. Waldorf Restaurant Co., 122 Wash. 383, 210 P. 801; Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717; Los Angeles, etc., District v. Andrews, 52 Cal.App. 788, 205 P. 1085; Harvey v. Bd. of Educ. of Harrisburg, 202 Ky. 82, 258 S.W. 956; Emory v. Boston Term. Co., 178 Mass. 172, 86 Am. St. Rep. 473; Hanna v. County of Hampden, 250 Mass. 107; Goodyear Shoe Machinery Co. v. Boston Term. Co., 176 Mass. 115; Olive v. Ry. Co., 11 Tex. Civ. 208, 33 S.W. 143. (a) Where a tenant for years installs fixtures on the demised property, on condemnation thereof the cost of such fixtures, their value, or the expense of removing them, cannot be considered as a distinct element of damages, but can be considered only to the extent to which they prove the value of the unexpired term of the lease. Emory v. Boston Term. Co., 178 Mass. 172, 86 Am. St. Rep. 473; Fiorini v. Kenosha, 243 N.W. 761; Bales v. Railroad Co., 92 Kan. 771, 141 P. 1009, L. R. A. 1916C, 1090; Pause v. Atlanta, 98 Ga. 92; Mayor, etc., of Baltimore v. Gamse & Bro., 132 Md. 290, 104 A. 429; Consolidated Ice Co. v. Railroad Co., 224 Pa. 487, 73 A. 937; Iron City Auto Co. v. Pitts, 253 Pa. 478, 98 A. 679, L. R. A. 1917C, 420; 20 C. J., sec. 194, p. 741; North Coast Co. v. Kraft, 63 Wash. 250, 115 P. 97; Seattle M. Railroad Co. v. Schieke, 3 Wash. 625, 29 P. 217; McMillan Printing Co. v. Ry. Co., 216 Pa. 504, 65 A. 1091; Des Moines Wet Wash Laundry Co. v. Des Moines, 197 Iowa 1082, 198 N.W. 486, 34 A. L. R. 1517; 1 Nichols, Eminent Domain (2 Ed.), sec. 234, p. 717. (b) Trade fixtures are chattels physically affixed to the real estate by a tenant for the purpose of carrying on his trade or business on the premises during the life of the lease with the intention of removing them at the termination thereof. Being affixed in aid of the purposes for which the lease was taken, they are attached rather to the leasehold than to the freehold. Red Diamond Clothing Co. v. Steidemann, 169 Mo.App. 306, 152 S.W. 615; Weeks-Betts Hardware Co. v. Roosevelt Lead & Zinc Co., 153 Mo.App. 387; In re West, 253 F. 966; Winnike v. Heyman, 185 Iowa 114, 169 N.W. 631; Waverly Park Amusement Co. v. Michigan United Traction Co., 197 Mich. 92, 163 N.W. 918; Ray v. Young, 160 Iowa 613, 142 N.W. 396; Alden v. Mayfield, 163 Cal. 793, 127 P. 45. (2) Rights created pending the condemnation suit are subject thereto, and create no rights against the condemner. Schreiber v. Ry. Co., 115 Ill. 340, 3 N.E. 427; In re State House, 21 R. I. 59; Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717; Harvey v. Bd. of Educ. of Harrisburg, 258 S.W. 956, 202 Ky. 82; Emory v. Boston Terminal Co., 178 Mass. 172, 86 Am. St. Rep. 473; Mayor, etc., of Baltimore v. Gamse & Bro., 104 A. 429, 132 Md. 290. (3) Regardless of the expiration of the lease, an owner who removes his property from the premises taken or damaged, for reasons not connected with the condemnation case, cannot claim an award for such property. Jackson v. New York, 213 N.Y. 37; Chicago, etc., Railroad Co. v. Catholic Bishop of Chicago, 119 Ill. 531. (a) No property is taken, title does not pass, and no rights vest until final judgment or the payment of the award. Const. of Mo., Art. II, Sec. 21; Jasper Land Co. v. Kansas City, 293 Mo. 674. (b) The removal of the trade fixtures from the premises, and the landlord's assignment of any interest it had, if any, in the fixtures to the tenant, constituted a severance of them from the real estate, and converted them into purely personal property. Denvir v. Crow, 9 S.W.2d 957; Bantuelle v. Chapman, 256 S.W. 936.

Clarence T. Case, David W. Voyles and George L. Stemmler for respondents.

(1) Section 2, Article II, Constitution of Missouri is self-enforcing, and may be supplemented by statute or city charter, providing means for carrying out such provision, which do not contravene same. Tremayne v. St. Louis, 6 S.W.2d 935. (2) Award of damages in condemnation will not be disturbed on appeal as to the amount, when it is supported by substantial evidence. Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; In re Property for Park in St. Joseph, 263 S.W. 97. (3) The commissioners were limited in determining the value of the property to be taken to effective date of the ordinance and the court could not properly take into consideration any change in the condition of the property, even though such change might have been due to the act of defendant. Mo. Pac. Ry. Co. v. Wernwag, 35 Mo.App. 453; Miss. River Bridge Co. v. Ring, 58 Mo. 495. (4) Whether new appraisement shall be ordered under the Charter of St. Louis is left to the judicial discretion of the trial court. Only abuse of such discretion will warrant interference on appeal. Art. XXI, Sec. 7, Charter of St. Louis; St. Louis v. Gerhart Realty Co., 40 S.W.2d 663; St. Louis v. Worthington, 19 S.W.2d 1069. (5) Machinery and equipment attached by a tenant for trade purposes, and intended to be used in connection with leased buildings and devoted to such purposes, may be removed during the tenancy, and are known as "trade fixtures." Northwestern Lumber & Wrecking Co. v. Parker, 125 Minn. 107, 145 N.W. 965; Red Diamond Clothing Co. v. Steidemann, 169 Mo.App. 332. The tenant need not remove them so long as he has a right to continuously occupy the premises, with the same, as tenant. Waverly Park Amusement Co. v. Michigan Trac. Co., 197 Mich. 95; Schouler on Personal Property (5 Ed.), sec. 127, p. 185. (6) In condemnation of buildings by eminent domain, the tenant is not obliged to remove the "trade fixtures," and if they are not removed they must be paid for as damages for property taken by the condemner, in connection with the buildings, under the rule applying to vendor and vendee. 2 Lewis on Eminent Domain (3 Ed.), sec. 728; St. Louis v. Ry. Co., 266 Mo. 708; In Matter of North River Water Front, 118 A.D. 866, affirmed 189 N.Y. 508; In Matter of City of New York, 256 N.Y. 244; United States v. Seagren, 50 F.2d 333, 75 A. L. R. 1494; 1 Nichols on Eminent Domain (2 Ed.), sec. 234; Jackson v. State of New York, 213 N.Y. 35, L. R. A. 1915D, 492; Des Moines, etc., Co. v. Des Moines, 198 N.W. 486, 34 A. L. R. 1521; White v. Ry. Co., 34 Ind.App. 293; Edmands v. Boston, 108 Mass. 549. (7) The award to a lessee is contingent only upon the condemner's election to take possession, and is not defeated by expiration of the lease subsequent to the ordinance of condemnation. Finney's Trustees v. St. Louis, 39 Mo. 178; Cleveland v. Cuyahogo, 41 Ohio St. 600; Edmands v. Boston, 108 Mass. 547; Des Moines, etc., Co. v. Des Moines, 34 A. L. R. 1521; In Matter of City of New York, 256 N.Y. 249; Justice & Co. v. Philadelphia, 169 Pa. 505; Philadelphia, etc., Ry. Co. v. Getz, 113 Pa. 219; Shipley v. Ry. Co., 216 Pa. 509; State v. Railroad Co., 88 Mont. 549.

Tipton, J. All concur, except Coles, J., not sitting.

OPINION

TIPTON

This case comes to the writer on reassignment and is a proceeding in condemnation. It was brought by the city of St. Louis, under the provisions of Ordinance 31656, as amended by Ordinance 35582, which provided for the widening of Market Street in that city. The effective date of the ordinance was May 18, 1922. The city has appealed from the final judgment of the circuit court approving item 22 of the commissioners' report. This item describes a tract of land owned by the respondent, Blanke Bros. Realty Company. In 1921, the owner renewed a lease to the respondent Blanke-Wenneker Candy Company, for a term of five years, the lease expiring March 31, 1926.

On April 25, 1928, Otto F. Karbe, a stockholder of the Blanke-Wenneker Candy Company, filed a petition in the Circuit Court of the City of St. Louis, wherein he asked that a receiver be appointed to take charge of the assets of the candy company. On this petition, Division Two of that court appointed Luke E. Hart and Israel Treiman, receivers for this company. The petition alleged that on April 7, 1928, at a meeting of the stockholders of this company, a resolution was adopted, that empowered "the board of directors to take all necessary steps to discontinue the active business of the company, to pay all its liabilities and collect in all its property, and to liquidate said corporation."

The commissioners fixed the value of the actual damages to the parcel of land described in this item at $ 272,400, and assessed the benefits at the sum of $ 9000. This award was made to the Blanke Bros. Realty Company. The commissioners attempted to award damages in the sum of $ 85,000, to the Blanke-Wenneker Candy Company.

Hereafter the Blanke Bros. Realty Company will be referred to as the lessor and the receivers of the Blanke-Wenneker Candy Company will be called the lessee. The city, the...