City of St. Louis v. Koch

• Decision Date: 18 September 1934
• Docket Number: 31873
• Citation: 74 S.W.2d 622,335 Mo. 991
• Parties: City of St. Louis v. Theodore Koch et al., Hedgleigh Realty Company, Appellant
• Court: Missouri Supreme Court

74 S.W.2d 622

335 Mo. 991

City of St. Louis v. Theodore Koch et al., Hedgleigh Realty Company, Appellant

No. 31873

Supreme Court of Missouri

September 18, 1934

Rehearing Denied September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge; Opinion filed at May Term, 1934, June 12, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Affirmed.

Gustave A. Stamm and Maurice L. Stewart for Hedgleigh Realty Company.

(1) Hedgleigh Realty Company, as vendee in a warranty deed executed by the Hydraulic Press Brick Company after the commencement of the proceedings but before the commissioners' report was filed or the taking of the land completed, is entitled to the compensation allowed for the taking of the land acquired. Kiebler v. Holmes, 58 Mo.App. 119; Hull v. Phillips, 128 Mo.App. 247, 107 S.W. 21; 82 A. L. R. 1063. (2) The ownership of title to the land taken is the issue to be decided in determining the right to the award made for the value of the land taken. Murphy v. Barron, 286 Mo. 410, 228 S.W. 492. (3) The words "reserved subject to condemnation by ordinance No 30828" appearing on the recorded subdivision plat reserved and retained title to the parcel so designated in the Hedgleigh Realty Company. Fort Smith & Van Buren Bridge District v. Scott, 111 Ark. 449, 163 S.W. 1135; Meyers v. Conway & Co., 90 Ala. 109, 7 So. 639. (4) A valid common-law dedication does not occur unless there appears an unequivocal intention of the dedicator to dedicate, accompanied with acceptance by the public, or unless there is continuous, adverse use of the land by the public for a period of ten years. Bauman v Boecheler, 119 Mo. 189, 24 S.W. 207; Kemper v. Collins, 97 Mo. 664, 11 S.W. 245; Carpenter v. St. Joseph, 263 Mo. 715, 174 S.W. 53. (5) An earnest money contract between the vendor and the vendee is merged in the subsequently executed deed between the same parties, which deed then becomes the final understanding of the parties, and the earnest money contract is not admissible in evidence to vary or contradict the terms of an unambiguous deed. Barger v. Healy, 276 Mo. 145, 207 S.W. 499; Davidson v. Manson, 146 Mo. 619, 48 S.W. 635; Bean v. Munger Land Co., 265 S.W. 847; Fulk v. Williams, 37 S.W.2d 513. (6) The description in a deed of the property conveyed by lot and block number in a recorded subdivision incorporates the recorded subdivision plat in the deed the same as if the plat was set forth in full in the deed. Dolde v. Vodicka, 49 Mo. 100; McKinney v. Doane, 155 Mo. 297, 56 S.W. 304; Glayd v. Franck, 248 Mo. 468, 154 S.W. 744; Whitehead v. Atchison, 136 Mo. 485, 37 S.W. 928; Lindsay v. Smith, 178 Mo.App. 193, 166 S.W. 820; Jeffords v. Dreisbach, 168 Mo.App. 583, 153 S.W. 274; Clark v. McAtee, 227 Mo. 192. (7) Benefits can be deducted from damages awarded only when the parcel taken and the remainder benefited are owned by the same person. Charter of City of St. Louis, Art. XXI, sec. 5. (8) The evidence and record made and the rulings obtained by the six exceptors could not inure to the benefit of other lot owners not filing exceptions. McKee v. St. Louis, 17 Mo. 184; State ex rel. v. Muench, 217 Mo. 137, 117 S.W. 25; Scarritt Estate Co. v. Johnson, 303 Mo. 664, 262 S.W. 373. (9) The order of Judge Calhoun, at the June Term, 1929, on exceptions to the first commissioners' report, became res adjudicata at the close of that term so far as the St. Louis Circuit Court was concerned and, until reversed or modified on appeal, Judge Landwehr was not at liberty to decide the same issue differently on exceptions to second commissioners' report at a later term. St. Louis v. Querl Lumber Co., 277 Mo. 167, 210 S.W. 21. (10) Private property cannot be taken for public use without just compensation. Mo. Const., Art. II, Sec. 21; St. Louis, etc., Railroad Co. v. Clark, 119 Mo. 357, 24 S.W. 157.

Charles M. Hay, John T. Hicks and James B. Steiner for City of St. Louis; J. M. Lashly and M. P. Phillips for Julia Investment Company.

(1) The judgment of distribution of the Circuit Court of the City of St. Louis was entered at the June Term, 1931, and no appeal having been taken at the June Term, the judgment is final, and the appeal of Hedgleigh Realty Company taken at the September Term, 1931, of said court should be dismissed. State ex rel. McCaskill v. Hall, 28 S.W.2d 80; Lafayette-South Side Bank & Trust Co. v. Siefert, 18 S.W.2d 572. (2) Where by agreement of the parties interested the question of distribution of the fund is submitted to the court for determination as to whether the city of St. Louis will pay the fund into court or credit the same against special assessments levied against other properties affected by the widening, the court has jurisdiction to determine the issue and its judgment thereon becomes final at the term at which made. Murphy v. Baron, 286 Mo. 390, 228 S.W. 496. (3) The question of distribution is collateral and independent of the condemnation proceedings and partakes of the nature of an interpleader suit in which ordinarily the condemning agent has no interest; the money, having been paid into court, stands in lieu of the property and the rights of the parties in the fund are to be determined by the court without regard to the condemning agent. Cassville School Dist. v. McArtor, 286 S.W. 731. (4) The condemning agent was interested in this proceeding because it did not know whether it should pay the money into court or apply the same as the charter provision (Art. XXI, Sec. 5) requires, as an offset against special benefits assessed against property abutting along the new line of Natural Bridge Avenue. Charter, City of St. Louis, Art. XXI, Sec. 5. (5) On the question of distribution, such as Hedgleigh Realty Company sought to raise under its exceptions to the first report of the commissioners, the court was without jurisdiction to pass upon that issue until all the parties interested in the question were before the court by its order of interpleader; the court having failed to have anyone other than Hedgleigh Realty Company before it, its order was ineffective. State ex rel. Scott v. Trimble, 272 S.W. 69; Ross v. Kendall, 183 Mo. 338, 81 S.W. 1108; Const. Mo., Art. II, Sec. 21. (6) At the final hearing on the second report of commissioners, from which the Hedgleigh Realty Company undertakes to appeal, the parties were properly before the court and its order of distribution therein of the fund involved was the proper exercise of jurisdiction and binding upon the parties before it. State ex rel. Scott v. Trimble, 272 S.W. 71; Ross v. Kendall, 183 Mo. 338, 81 S.W. 1108; Const. Mo., Art. II, Sec. 21. (7) Where property is sold and the vendor refers to a street line as a boundary, there is a warranty that the street exists. St. Louis v. Clegg, 233 S.W. 1; Bell v. Walkley, 27 S.W.2d 458. (8) Where by contracts of sale or by acts or conduct or by deeds the vendor has recognized the boundary line of property conveyed to be a street, it inures to the benefit of all who may own lots upon that boundary line. St. Louis v. Clegg, 233 S.W. 1; Bell v. Walkley, 27 S.W.2d 458. (9) Under conveyances in Missouri, where property is bounded by a street, the conveyance carries with it title to the center of the street, and any award which the city might be compelled to pay because of the charter provision requiring it to pay damages as of the effective date of the ordinance, would pass to the purchaser under the deed. Grant v. Moon, 128 Mo. 43, 30 S.W. 328; Neil v. Independent Realty Co., 298 S.W. 363; State ex rel. Scott v. Trimble, 272 S.W. 70. (10) Where a deed refers to "appurtenances," evidence is admissible to show what these are. 22 C. J., sec. 1687; Witte v. Quinn, 38 Mo.App. 692; Mo. Pac. Ry. Co. v. Maffitt, 94 Mo. 60; Snoddy v. Bolen, 122 Mo. 479. (11) The appellant cannot, pending the condemnation proceedings, subdivide the unimproved tract of land of its grantor, a part of which is to be taken in said condemnation proceedings, and sell the lots abutting on the strip proposed to be so taken, and then appropriate to itself the damage award ($ 10,910) and thereby defeat the plain provisions of the city charter providing for set-off of damages and benefits. City Charter, Art. XXI, Secs. 5, 6; State ex rel. C. B. & Q. Railroad Co. v. City of Kansas, 89 Mo. 40, 14 S.W. 575; State ex rel. Highway Comm. v. Jones, 321 Mo. 1154, 15 S.W.2d 338; State ex rel. Highway Comm. v. Hartman, 44 S.W.2d 169; Bauman v. Ross, 167 U.S. 574, 42 L.Ed. 283; R. S. 1929, secs. 11180, 11193; State ex rel. v. Chase, 42 Mo.App. 351; City Charter, Art. XXI, Sec. 4; St. Louis v. Provenchere, 92 Mo. 69; Kemper v. King, 11 Mo.App. 128; Wolfort v. St. Louis, 115 Mo. 144, 11 Mo.App. 128; Bambrick Bros. Const. Co. v. Semple Place Realty Co., 270 Mo. 457. (12) Appellant, in order to show that it had no intention to dedicate the strip of land in question (proposed to be taken in condemnation) by its acts in pais, sets up, among other things, that it paid taxes on the strip of land. If taxes were illegally collected by city officials, the abutting property owners are not thereby estopped to set up dedication. In no event can the payment of taxes by appellant relieve it from its acts in pais. City Charter, Art. XXI, Sec. 6; State ex rel. Koeln v. West Cabanne Improvement Co., 213 S.W. 25; Laclede Christy Clay Products Co. v. St. Louis, 246 Mo. 461; Senter v. Lumber Co., 255 Mo. 606.

OPINION

Gantt, J.

Proceeding in condemnation. From the judgment awarding certain lot owners $ 10,910 damages for a strip of land, the Hedgleigh Realty Company, who claimed to be the owner of said land, appealed.

On April 22, 1920, the board of aldermen of the city of St Louis enacted an ordinance (No. 30,828) providing for the...