City of St. Louis v. Lang

• Decision Date: 03 December 1895
• Citation: 33 S.W. 54,131 Mo. 412
• Parties: City of St. Louis v. Lang et al., Appellants
• Court: Missouri Supreme Court

33 S.W. 54

131 Mo. 412

City of St. Louis v. Lang et al., Appellants

Supreme Court of Missouri, Second Division

December 3, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Broadhead & Hezel for appellants.

(1) In these statutory and summary proceedings courts of general jurisdiction stand upon the same footing as those tribunals whose jurisdiction is special and limited. Ellis v Railroad, 51 Mo. 200; Moses v. Dock Co., 84 Mo 245; Lind v. Clements, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 474; Anderson v. Pendleton, 89 Mo. 61; State ex rel. v. Field, 107 Mo. 445. (2) The utmost strictness is required in order to give validity to these proceedings, and unless upon the face of the proceeding had, it affirmatively appears that every essential prerequisite of the statute conferring the authority has been fully complied with, every step from inception to termination will be coram non judice. Dillon on Mun. Corp. [4 Ed.], sec. 605, and note to sec. 604, p. 707; Ellis v. Railroad, supra; Moses v. Dock Co., supra; Anderson v. Pendleton, supra; State ex rel. v. Field, supra. (3) The petition in this case is clearly insufficient to confer jurisdiction. It fails to show that the "proper authorities" have graded or regraded or have authorized the grading, etc., of Hickory street. It also fails to show that the proper authorities ever made any attempt to agree with the owners of the property in regard to the proper compensation therefor, or that they failed to so agree after reasonable effort to effect an agreement. Dillon on Mun. Corp. [4 Ed.], sec. 605, and note 1 to 604, p. 707; Lind v. Clements, supra; Leslie v. St. Louis, supra; Anderson v. St. Louis, 47 Mo. 479; Anderson v. Pendleton, supra. (4) The circuit court erred in taking the averments of the petition as confessed and in refusing to require affirmative proof of the jurisdictional facts necessary to entitle plaintiff to a judgment or decree therein, and in entering its judgment herein without any affirmative proof whatever in respect to said jurisdictional facts. (5) The court erred in striking out the exceptions of certain defendants, and also erred in refusing said defendants leave to file their answer. (6) The owners of property damaged are not entitled to compensation for any damage suffered by reason of change of grade or grading done prior to November 30, 1875, the date on which the present constitution went into effect. Schaltner v. Kan. City, 53 Mo. 162; Wegeman v. Jefferson City, 61 Mo. 55.

W. C. Marshall for respondent.

(1) The circuit court had full jurisdiction and all necessary jurisdictional facts were stated in the petition. R. S. 1889, secs. 1815-1821, inclusive. (2) The exceptions filed by appellants, being out of time, were properly overruled. The report of the commissioners was filed on February 17, 1893, and the exceptions were not filed until March 10, 1893, which was twenty-one days after the filing of the report, or eleven days after the expiration of the ten days allowed by section 1818, Revised Statutes, 1889, for filing exceptions, and hence the court had no jurisdiction to entertain the same, and acted properly in striking out the exceptions. (3) No act having been done by the city changing the physical condition of Hickory street prior to November 30, 1875, the owners of property affected by the proposed work of grading, are entitled to damages, and the persons owning property that will be benefited by such change are properly assessable with benefits.

OPINION

Sherwood, J.

On March 18, 1892, the plaintiff city instituted this proceeding, under sections 1815 to 1821, inclusive, Revised Statutes, 1889, to assess the damages and benefits caused by changing the grade of Hickory street between Mississippi and Armstrong avenues.

Prior to that, the city, on the eighteenth of January, 1875, by ordinance number 9295, entitled, "an ordinance to establish the grade of Hickory street between Mississippi avenue and Armstrong avenue," fixed the grade by establishing the same at a point two hundred and forty-five feet west of the west line of Mississippi avenue, at an elevation of eighty feet above the city directrix. Subsequently thereto, to wit, on October 31, 1891, the city passed an ordinance number 16454, whereby were defined the limits within which private property would be benefited by the grading of Hickory street, as aforesaid.

Upon institution of this proceeding all persons who would suffer damages, and all persons within the benefit district, whose property would be benefited, were made parties defendant, and properly brought into court. Thereafter, such steps were taken, in conformity with law, as resulted in the filing of a report, by properly appointed commissioners. More than ten days after the filing of this report defendants filed exceptions to the report, which exceptions were stricken out on motion of plaintiff, because not filed in time, as required by section 1818, Revised Statutes, 1889. Thereupon, defendants asked leave to file an answer, but the court refused to grant such leave. Subsequent to this, the trial court approved and confirmed the report of the commissioners, and because of the failure of defendants, within the time allowed by law, to file any answer to the petition, or any exceptions to the report of the commissioners, the averments of the petition were, by the lower court, taken as confessed, and judgment entered accordingly.

The petition, after appropriate reference to section 9295, establishing the grade of Hickory street, as heretofore stated, proceeds thus:

"That thereafter, to wit, on the thirty-first day of October, 1891, there went into force and effect an ordinance of said city of St. Louis, duly enacted by the municipal assembly thereof, upon the unanimous recommendation of the board of public improvements, in writing, and approved by the mayor of St. Louis, an ordinance to define the limits within which private property has been, or will be, benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue, which ordinance is numbered 16454, and is in words and figures following, to wit:

"'(16454).

"'An ordinance to define the limits within which private property has been, or will be, benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue.

"'Be it ordained by the municipal assembly of the city of St. Louis as follows:

"'Section 1. The real estate situated within the following boundaries is hereby declared to have been, or to be, benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue, to the grade established by ordinance nine thousand, two hundred and ninety-five, approved January eighteenth, eighteen hundred and seventy-five, to wit:' etc.

"Plaintiff further states that it is necessary to grade Hickory street between Mississippi and Armstrong avenues, to conform to the grade established by the ordinance aforesaid, and for the purpose of constructing and improving said street; that the owners of the property affected by said improvement have refused to consent thereto, and that plaintiff is unable to agree with said owners, for the proper compensation for the damages done, or likely to be done, or sustained, by reason of such improvement, and that by reason of the legal incapacity of the minor defendants herein, such compensation can not be agreed upon.

"Plaintiff further states that the general nature of the work of improvement aforesaid is to conform the grade of said Hickory street between said Mississippi avenue and Armstrong avenue to the other portions of Hickory street, and in so doing to fill in some places and to cut down in other places, thereby changing the natural condition of the land.

"Plaintiff further states that the defendants above named are in actual possession of the premises to be affected either by being damaged or by being benefited, or have a title to said premises appearing of record and lying within the benefit district established by said ordinance number 16454."

The sections of the statute already referred to, which control this cause, are as follows:

Section 1815 provides that: "In all cases where the proper authorities in any city in this state have graded or regraded, or may hereafter grade, or change the grade or lines of any street or alley, or in any way alter or enlarge the same, or construct any public improvement, thereby causing damage to private property for public use, within the meaning of section 21 of article 11 of the state constitution, without the consent of the owner of such property, or in case they fail to agree with the owner thereof, for the proper compensation for the damages so done, or likely to be done, or sustained by reason thereof, or if by reason of the legal incapacity of such owner no such compensation can be agreed upon, the circuit court having jurisdiction over the territory embraced in such city, or any judge thereof in vacation, on application by petition, either by the city authorities or the owner of the property for which damage is claimed or anyone on behalf of either," is authorized to appoint commissioners to assess the damages and benefits.

This section further provides that: "The petition shall set forth the general nature of the work, or improvement, causing damage to private property for public use as aforesaid together with all the facts necessary to give the court jurisdiction in the premises, the names of the owners of the several lots or parcels of land to be affected thereby, if known, or, if unknown, a correct description of the parcels whose...