City of St. Louis v. Waterman

• Decision Date: 04 March 1919
• Citation: 209 S.W. 905,277 Mo. 221
• Parties: CITY OF ST. LOUIS, Appellant, v. CLARENCE WATERMAN et al
• Court: Missouri Supreme Court

209 S.W. 905

277 Mo. 221

CITY OF ST. LOUIS, Appellant, v. CLARENCE WATERMAN et al

Supreme Court of Missouri, Second Division

March 4, 1919

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Rversed and remanded.

Chas A. Daues, H. A. Hamilton and G. Wm. Senn for appellant.

(1) The allegation of interests in the land to be appropriated though erroneously set out in its petition by the condemner, would not alter the standing of and cause of action by the condemner; the respective rights of the defendants to the awards made would attach none the less in accordance with the facts shown and with the true interests in the land taken. St. Louis v. Barthel, 256 Mo. 276. (2) The particular description of each property and of the various estates and interests therein, if such allegation thereof in the petition, by interpretation of the city charter, be required, is yet not jurisdictional in character. St. Louis v. Franks, 78 Mo. 42; Thompson v. Ry. Co., 110 Mo. 158; Union Depot Co. v. Frederick, 117 Mo. 147; Kansas City v. Smart, 128 Mo. 289. (3) The practice in actions for the exercise of eminent domain follows the general rules of practice, when not governed by special statutory or charter provision in the particular instance; i. e., upon petition filed stating defectively or loosely an action in condemnation for public use, the practice would not dictate a categorical dismissal of the petition -- upon any theory of legal requirement of the condemning agent to present, at the peril of sacrifice of its cause of action, an original petition, perfect and invulnerable even in the particulars; instead, the practice would afford opportunity to supply form or substance in accord with the fact of an existing cause of action, before dismissing for a failure or refusal so to supply. St. Louis Ry. Co. v. Fowler, 113 Mo. 467; Leavenworth Bridge Co. v. Atchison, 137 Mo. 230; St. L., K. & N.W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 407; St. Louis v. Lang, 131 Mo. 419.

WHITE C. Roy, C., absent.

OPINION

WHITE, C. --

This is a condemnation proceeding brought by the City of St. Louis for the purpose of opening a street. Thirty or forty individuals, corporations and trustees, are named as parties defendant.

The petition sets forth that on the 25th of July an ordinance, No. 28108, went into effect in the City of St. Louis, to establish and open a street to be known as Kingsbury Boulevard extending from Clara Avenue to De Baliviere Avenue. The ordinance is set out in the petition. Section 2 of said ordinance is as follows:

"Section Two. A street to be known as Kingsbury Boulevard, extending from Clara Avenue to De Baliviere Avenue, as hereby established as a public highway one hundred feet wide, the centre line thereof to run fifty feet north of and parallel to the north line of property now or formerly owned by Sarah E. Simmons, Emma P. Simmons and Susan M. Simmons, and the north line of property now or formerly owned by Stewart Shallcross Real Estate Company, in City Block numbered thirty-eight hundred and seventy-five, west.

"The said centre line being distant about four hundred and ninety feet north of the north line of Waterman Avenue, measured along the east line of De Baliviere Avenue."

The petition then alleges that it is necessary for the purpose of opening said Kingsburg Boulevard as provided in the ordinance, No. 28108, to appropriate, condemn, take and damage private property for public use, pursuant to the provisions of said ordinance; and further: "That the defendants named in the caption of this petition respectively are the owners of, or claim some interest in, the several lots or parcels of land included in the property hereinbefore described and sought to be condemned, appropriated, taken or damaged for the purposes of the ordinance aforesaid."

The petition then prays that process issue, that commissioners be appointed to assess and award the value of property proposed to be taken "and other damages which the respective owners or persons claiming an interest in" the lots and parcels of land included in the premises heretofore described may severally sustain, and also to assess benefits against all lots or parcels of property or interest therein which will be especially benefitted by the establishment of said street; that the plaintiff have judgment for the condemnation of the property hereinbefore described, etc., and that plaintiff may have judgment against the several lots or parcels of property, or interest therein, for assessment of special benefits, etc.

To this petition the defendants, who are respondents here, Clarence Waterman, Mary Virginia Tompkins, Adele K. Worthington and George Y. Worthington, her husband, and Winifred Waterman, filed their joint answer. This answer was afterwards withdrawn with leave and each of the five named defendants filed a motion to dismiss the plaintiff's petition. The ground presented in each motion is the same, to-wit:

"That said petition does not set forth a description of the property and estate or interest of this defendant therein which the plaintiff seeks to appropriate or damage."

These motions were filed on the 15th day of May, 1916, and on the 17th day of May the court made this entry:

"It appearing to the court that heretofore, to-wit, On the 15th day of May, 1916, the separate motions of defendants George Y. Worthington, Mary V. Tompkins, Clarence Waterman, Winifred Waterman and Adele K. Worthington to dismiss plaintiff's petitions were sustained, it is now therefore considered and adjudged by the court that the plaintiff's cause of action be and the same is hereby dismissed for want of jurisdiction, and that the defendants have and recover of plaintiff the cost of this proceeding and that execution issue therefor."

Thereafter, at the same term, the plaintiff city filed its motion to set aside the order of dismissal and grant the order of rehearing. This motion was overruled and the plaintiff appealed.

I. The proceeding in this case is under Section 1 of Article 21 of the Charter of St. Louis adopted in 1914. This section provides for "condemnation of or damage to private property." It sets forth that the Board of Aldermen may provide by ordinance for the appropriation of private property or any easement or use therein for public use and the City Counsellor in the name of the city shall apply promptly, "to the circuit court of the Eighth Judicial Circuit, or to any judge thereof in vacation by petition setting forth the general nature of the public use for which the property is to be appropriated or damaged, a description of the property and the estate or interest therein in each instance which the city seeks to appropriate or damage, and praying the appointment of three disinterested commissioners to assess damages and benefits as hereinafter provided, to which petition the owners shall be made defendants by name, if known, and if unknown, by describing their claims or interests in such property and how derived by them. If the action affect the property of persons under guardianship the guardians shall be made defendants; if an estate or interest less than a fee, the persons having the next vested estate in remainder or reversion shall be made defendants or their interests will not be bound; but only persons in actual possession of and claiming title or who have record title appearing upon the proper records of the city to property affected, need be made defenda...