City of St. Louis v. Glasgow

• Decision Date: 03 January 1914
• Citation: 162 S.W. 596,254 Mo. 262
• Parties: CITY OF ST. LOUIS v. FRANK A. GLASGOW et al., Appellants
• Court: Missouri Supreme Court

162 S.W. 596

254 Mo. 262

CITY OF ST. LOUIS v. FRANK A. GLASGOW et al., Appellants

Supreme Court of Missouri, First Division

January 3, 1914

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

Reversed and remanded (with directions).

Walter B. Douglas for appellant.

(1) Whenever in pursuance of any law the property of an individual is to be divested against his will, there must be a strict compliance with all the provisions of law authorizing such a proceeding. Lind v. Clemens, 44 Mo. 540; In re Bledsoe Hill, 200 Mo. 630; 3 Dillon on Municipal Corporations (5 Ed.), secs. 1040, 1041; 4 McQuillin on Municipal Corporations, secs. 1531, 1532; 2 Lewis on Eminent Domain, sec. 497. (2) Especially will the courts require a strict compliance with all conditions precedent to the exercise of the power, and all provisions as to the manner of its exercise intended for the benefit and protection of the citizen. Lind v. St. Louis, 44 Mo 540; Leslie v. St. Louis, 47 Mo. 474; Anderson v. St. Louis, 47 Mo. 479; Ells v. Railroad, 51 Mo. 200; Moses v. Dock Co., 84 Mo. 242; Wilkinson v. Dock Co., 102 Mo. 130; State v Wood, 155 Mo. 471. (3) If the statutory authority is not strictly pursued the proceedings will not have the effect to divest the owner of his property. Anderson v. St. Louis, 47 Mo. 479; Ells v. Railroad, 51 Mo. 200; Moses v. Dock Co., 84 Mo. 242; Wilkinson v. Dock Co., 102 Mo. 130; State v. Wood, 155 Mo. 471; In re Bledsoe Hill, 200 Mo. 630. (4) The failure of the city to come to an amicable agreement with the owner as to the amount of compensation to be paid, is a jurisdictional matter, and the proceedings must show the offer and failure to make such agreement. Ells v. Railroad, 51 Mo. 203; and cases under Point 3. (5) The court erred in overruling this defendant's motion to strike from the files the plaintiff's exceptions to the report of the first commissioners. Charter, art. 6, sec. 9, Woerner's Revised Code, p. 392; McQuillin's Amended Charter, p. 319. In this case time was granted by the court to the city, upon application of the city counsel, to report the result of the commissioners' report to the Municipal Assembly. The result of the commissioners' report was reported to the Municipal Assembly, and the assembly failed to act upon said report within the time limited. By the terms of the charter the report was thereby approved, and accepted by the city, and the court was without power to set it aside. (6) The court erred in appointing a second commission and in ordering a new assessment of damages, after the approval of the report of the first commission by the Municipal Assembly. Charter, art. 6, sec. 9, Woerner's Revised Code, 392.

William E. Baird and E. E. Pearcy for respondent.

(1) Under the charter of the city of St. Louis, upon which this suit was based, it was not necessary to attempt to agree with the owner of property as to the damages, on account of the taking of his property before bringing condemnation suit. Art. 6, sec. 2, Charter. (2) Section 4 of article 7 of the charter has no application to this case for the reasons: (a) This section does not apply to a case where property is actually taken. It is intended to cover only consequential damages. Sec. 21, art. 2, Constitution of Missouri; Secs. 2, 3, 4, 5, 6 and 7, art. 8, of an act "To Revise the City Charter of the City of St. Louis," in Session Laws, 1867, pp. 72, 73 and 74; Laws 1867, pp. 184 and 188, secs. 1 and 18; Charter of St. Louis (adopted 1876), art. 6, secs. 2-12, and art. 7, sec. 4. (b) If section 4 could be construed to mean damages for the taking of property, then such section is inoperative, because it does not designate the officer of the city who is to have the authority to negotiate for such purchase, and this omission renders this part of the charter meaningless. (3) However, if we grant that Sec. 4, art. 7, of the charter does apply to this suit, the right of the defendant Glasgow to insist upon the negotiations for the purchase of his property has been waived by him. This provision can be waived by the owner. 2 Lewis on Eminent Domain (3 Ed.), p. 897, sec. 499, and sec. 773, p. 1376; United States v. Reid, 56 Mo. 565; Matter of the Water Commissioners, 3 Edwards, ch. 552; President v. Diffebach, 1 Yates, 367; Ney v. Swinney, 36 Ind. 454; Taylor v. Clemson, 11 Clark & Finnelly, 610; Wilson Bros. v. Trenton, 53 N. J. L. 178; 15 Cyc. 829; Matter of the New York, etc., Ry. Co., 21 How. Pr. 434; Railroad v. Donovan, 149 Mo. 101; Lieberman v. Railroad, 141 Ill. 144; Drainage District v. Dawson, 243 Ill. 177. The defendant made no objection in the circuit court to the petition in this case before the appointment of the first commissioners. After their appointment he appeared before them and introduced evidence. This alone constitutes a waiver. Lieberman v. Railroad, 141 Ill. 144. (4) The court did not err in overruling the defendant's motion to strike the plaintiff's exceptions to the report of the first commissioners from the files. Secs. 7, 9 and 10, art. 6, Charter; Eyssell v. City, 168 Mo. 617; St. Louis v. Brinckwirth, 204 Mo. 280.

WOODSON, P. J. Bond, J., concurs in result.

OPINION

WOODSON, P. J.

The plaintiff, the city of St. Louis, a municipal corporation, organized and incorporated under the laws of this State, and operating under a special charter, instituted this suit in the circuit court of said city, against the defendants, to condemn some thirty-odd acres of land for the use of the waterworks of said city. Said land is particularly described in the pleadings.

A trial was had which was not satisfactory to one of the defendants, and he duly appealed the cause to this court.

The facts are few and undisputed, except as to the value of the land taken and the extent of the damage done to that not taken.

On December 30, 1907, the circuit court duly appointed Malcolm McBeth, Charles J. Daley and M. J. Murphy commissioners to assess the damages. On August 27, 1908, the commissioners filed their report with the clerk of said court, in which they assessed his damages for the land taken at the sum of $ 35,172, and that done to the remainder by reason of the taking of the former, at the sum of $ 8300.

On the same day the report was filed, the city filed exceptions thereto. And on September 24, 1908, the court gave the city until October 15th, to report the findings of the commissioners to the Municipal Assembly, for approval or rejection.

On November 6, 1908, the defendants filed a motion to strike out portions of the third paragraph of plaintiff's exceptions, which paragraph reads as follows (the words embraced in brackets are those to which the motion was directed):

"Because said commissioners, Charles J. Daley, Michael J. Murphy and Malcolm Macbeth, were prejudiced in favor of defendants Allan C. Glasgow and Frank A. Glasgow, and prejudiced against the city of St. Louis, plaintiff in the above entitled cause, and because of said prejudice, awarded said Allan C. Glasgow and Frank A. Glasgow the sum of $ 43,372, this being $ 1400 per acre for the 30.98 acres taken and the damage to the remainder, when said commissioners knew that the property of said Allan C. Glasgow and Frank A. Glasgow was only worth $ 21,686, or $ 700 per acre. [And said commissioners further knew that said Allan C. Glasgow and Frank A. Glasgow had, since the institution of this suit, and while the commissioners were hearing evidence on which to base their findings, offered to sell this piece of property to the city of St. Louis for $ 1000 per acre, or $ 400 per acre less than the commissioners awarded said Allan C. Glasgow and Frank A. Glasgow. And the commissioners further knew that since the institution of this proceeding, and while the commissioners were at work hearing evidence on which to base their findings in this case, the city of St. Louis purchased thirty-two acres adjoining this property on the south from Albert Meints for $ 700 per acre, and that said land is similarly located and equal in value to the property owned by said Allan C. Glasgow and Frank A. Glasgow. And the commissioners further knew that the city of St. Louis had purchased since the institution of this suit, and while the commissioners were hearing evidence upon which to base their findings, the several tracts of land included in the tract originally proposed to be condemned under this proceeding, consisting of 80.20 acres, more or less, for the sum of from $ 600 to $ 750 per acre.]

"Because the commissioners erred in awarding $ 8300, or any sum, to Allan C. Glasgow and Frank A. Glasgow as the damage done to the parcel of land hereinbefore described lying west of the St. Louis Waterworks conduit and the Columbian Bottom Road, said land being separated from the part sought to be condemned, and not so situated as a part of the parcel of land sought to be condemned as to entitle the owners to damages for the condemnation and appropriation of the first described parcel."

This motion was sustained by the court on the 6th of November, 1908.

On the same day the plaintiff filed certificates of the failure of the Municipal Assembly to act on the report of the commissioners with the clerk of the court, which, omitting the caption, are as follows:

"I Thomas J. Leonard, Clerk of the House of Delegates, hereby certify that the House of Delegates did, prior to and including October 15, 1908, fail to act upon the report of commissioners appointed by the circuit court for the Eighth Judicial Circuit in the matter of condemning certain property for the use of the waterworks of the city of St. Louis, pursuant to Ordinance 23153 of said city, which said report was by the city counselor reported to the Municipal Assembly on August 26, 1908.

"Thos J....