Hirt v. City of Casper

• Decision Date: 11 June 1940
• Docket Number: 2163,2162
• Citation: 56 Wyo. 57,103 P.2d 394
• Parties: HIRT ET AL. v. CITY OF CASPER; HOLM ET AL. v. SAME
• Court: Wyoming Supreme Court

103 P.2d 394

56 Wyo. 57

HIRT ET AL. v. CITY OF CASPER;

HOLM ET AL. v. SAME

Nos. 2162, 2163

Supreme Court of Wyoming

June 11, 1940

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

Condemnation proceedings by the City of Casper against J. P. Hirt and others, and Laura Mai Holm, on behalf of herself and as guardian of her minor children, and others. To review an adverse judgment, J. P. Hirt and others and Laura Mai Holm on behalf of herself and as guardian of her minor children and others bring error.

Affirmed.

For the plaintiffs in error, there was a brief by E. E. Enterline Madge Enterline and George W. Ferguson of Casper, and oral arguments by Messrs. Enterline and Ferguson.

The proceedings in error in the two cases are brought and being prosecuted under the provisions of Section 38-225, R. S. 1931. The following statutes are referred to, which we believe are decisive of the questions involved, with respect to powers of cities of the first class in exercising the power of eminent domain, and relate to power and procedure: Secs. 22-354; 38-203-4-6; 38-214, 215, 216, 219, 222, 223. Private property may not be taken for public or private use without just compensation. Art 1, Sec. 33, Constitution. The powers of a municipal council must be exercised at a meeting legally called. 19 R. C. L. 183; Edwards v. City of Cheyenne, 19 Wyo. 110. There was a failure to comply with statutory requirements and the proceedings of the council were invalid. 20 C. J. 310; City v. Bjork (Mont.) 98 P.2d 324; Edwards v. Cheyenne, 19 Wyo. 144, 145. Absolute compliance with statutes governing the eminent domain proceedings is necessary. Ry. Co. v. Gradert, 43 Wyo. 268; Robertson v. Robertson (Ohio) 55 N.E. 411; Rawlins v. Jungquist, 16 Wyo. 403; Board v. Adler (Colo.) 194 P. 621; Stork v. City of Philadelphia, 195 P. 101; Penn Mutual Life Ins. Co. v. Heiss (Ill.) 33 A. S. R. 273; Mercer County v. Wolff (Ill.) 86 N.E. 708. We believe the orders in both cases should be reversed.

For the defendant in error, there was a brief and oral argument by W. J. Wehrli of Casper.

Casper is a city of the first class and its right to exercise the power of eminent domain is found in Section 22-354, R. S. 1931. The City followed the prescribed procedure, and notice required by Article 2, Chapter 38, R. S. was given defendants. Said proceedings invoked the jurisdiction of the court to determine compensation to be paid upon additional property. No objections to the proceedings were offered. We think that statutes are clear in giving the right or condemnation where property is not actually taken but only affected. Section 22-354 gives cities of the first class the same rights, powers and privileges in condemnation proceedings as railroad companies, as set forth in Chapter 38, Article 2, Revised Statutes, 1931. 4 McQuillin Municipal Corporations, 2d Ed., Sec. 1593. A change in a street grade results in damage to abutting property, although there is no physical invasion of the property. 5 McQuillin Municipal Corporations, 2d Ed., Sec. 2124; 20 C. J., Sec. 153; Dickerson v. Okolona, 135 S.W. 863; 20 C. J. 677, 689; Stuhl v. Great Northern R. Co., 161 N.W. 501; 4 McQuillin, 2d Ed., Sec. 1599; Chicago v. Taylor, 125 U.S. 161; Barnard v. Chicago (Ill.) 110 N.E. 412; Muskogee v. Hancock (Okla.) 158 P. 622; Macon v. Daley (Ga.) 58 S.E. 540; 22 A. L. R. 145; 45 A. L. R. 534; Commission v. Smith (Okla.) 293 P. 1002; Brown v. Seattle (Wash.) 31 P. 313. Cases cited by plaintiffs in error to the contrary do not seem to be in point. A distinction has been recognized between cases where the maker of the improvement admitted the accrual of damage to property not taken, and in cases where damage was denied. Bradbury v. District, 86 N.E. 163; People v. Kingery, 16 N.E.2d 761; Grunewald v. Chicago (Ill.) 21 N.E.2d 739. This court has recognized the right of recovery, where no property is taken, caused by change in grade of the street. Rawlins v. Jungquist, 16 Wyo. 403. The point is discussed in Tremahe v. City, 6 S.W.2d 935; Ry. Co. v. Jennings, 53 P.2d 691. A public corporation may abandon construction after determination of the amount of compensation required. Gillespie v. Board of Commissioners, 47 Wyo. 1. The measure of damages and the rules of evidence are the same in an action by the property owner for damages as in a condemnation proceeding. Board v. Adler (Colo.) 194 P. 621. It was the obligation of the city to prosecute this proceeding. 20 C. J. 1159. The right of eminent domain may be exercised by a city only in the manner provided by statute. 4 McQuillin Municipal Corporations, 2d Ed., p. 352; Edwards v. Cheyenne, 19 Wyo. 110. What the Council could have authorized in the first instance it could later ratify. Sayre v. City of Orange, 67 A. 933; City v. Ring (Ill.) 144 N.E. 333. This is a special proceeding and not a civil action. Edwards v. Cheyenne, supra. The minor defendants are represented by a duly appointed guardian. The procedure here followed was in compliance with the statutes and laws of the state.

E. E. Enterline, Madge Enterline and Geo. W. Ferguson in reply.

We are in accord with the principles announced in the cases cited by defendant in error, that an abutting owner has a right to recover damages, if construction depreciates the value of property not actually taken. Rawlins v. Jungquist, 16 Wyo. 403. We submit however that the several cases cited by defendant in error in opposition to our contentions are governed by statutes and constitutional provisions peculiar to the jurisdiction where decided. A notable example is found in State Highway Commission v. Smith (Okla.) 293 P. 1002. Of course, the law permits the condemning party to abandon the improvement in a proper proceeding brought for the condemnation thereof on learning the cost thereof. Gillespie v. Board of Commissioners, 47 Wyo. 1. We have in our original brief discussed the phrase "taken or injured thereby," which seems to have a well-established meaning according to the authorities. R. R. Company v. Crose (Ill.) 73 N.E. 865. The rule that statutes in pari materia are to be taken and construed together also applies. Huber v. Thomas, 45 Wyo. 440; State v. Jack, 52 Wyo. 173. We find no authorities cited in the brief of defendant in error dispensing with the necessity of a city council taking some affirmative action evidencing its intention to condemn or to have private property condemned, before commencing condemnation proceedings, or in support of proceedings for condemnation in which plain statutory requirements have been ignored.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is a condemnation proceeding under the power of eminent domain. The City of Casper, a city of the first class, seeks to construct a subway underneath the tracks of the Chicago, Burlington and Quincy Railroad Company, to be a part of North Center Street, and to take the place of that part of that street which now crosses these tracks. The defendants are abutting property owners on North Center Street, and the city seeks in this proceeding to have their damages assessed which they will sustain by reason of the construction of the subway. Some of the defendants demurred to the petition. The demurrer was overruled. An order for condemnation was entered. A commission was appointed to assess the damages. They made their report. Some of the defendants demanded a trial by jury. The demand was granted, and the jury assessed the damages of the different defendants, including the damages sustained by the plaintiffs in error herein. Thereafter motions were filed by the latter, which, in substance, are to the effect that the trial court had no jurisdiction to cause the damages to be assessed herein. The specific points raised will be mentioned hereafter. The motions were overruled, and a final order was entered by the court. Thereupon proceedings in error were instituted to bring the case to this court for review. The petition in error of Laura Mai Holm, on behalf of herself and as guardian of her minor children, is separate from that of the other plaintiffs in error. The only point in her case, not involved in the other, relates to the allegation of the petition as to the guardianship of the minors. The two cases have been consolidated for argument in this court, and this opinion will dispose of both petitions in error.

1. It appears, inferentially at least, that the council of the City of Casper had not adopted a formal resolution authorizing the city attorney to institute the proceeding for condemnation herein. It is contended that that was necessary. The Council adopted a resolution on June 19, 1939, ratifying and confirming what had been done. The petition filed in the case contained no allegation that its filing was authorized by the council. Section 38-204, Rev. St. 1931, states the essentials necessary to be contained in the petition. That does not include an allegation of the adoption of a resolution as above mentioned. The petition appears to contain all the allegations required by the statute. The court determines the "right to make the appropriation." Sec. 38-214. In view of these facts we do not think that the lack of the adoption of a formal resolution previous to the institution of the proceedings was fatal, and that the ratification was sufficient. It has been so held. Kountze Bros. v. Proprietors etc., 58 N.J.L. 303, 33 A. 252; Lake Shore etc. Ry. Co. v. B. & O & C. R. Co., 149 Ill. 272, 37 N.E. 91; State ex rel. v. Superior Court, 71 Wash. 84, 127 P. 591. In City of Winchester v. Ring, 312 Ill. 544, 144 N.E. 333, it was held that when the petition need not recite the authority for bringing the proceeding, the authority of the counsel bringing it will be...