In re Condemnation of Property for Park, Etc.

• Decision Date: 22 March 1924
• Docket Number: No. 2.4930.,2.4930.
• Citation: 263 S.W. 97
• Parties: IN RE CONDEMNATION OF PROPERTY FOR PARK IN CITY OF ST. JOSEPH. Appeal of CORBY ESTATE.
• Court: Missouri Supreme Court

263 S.W. 97

IN RE CONDEMNATION OF PROPERTY FOR PARK IN CITY OF ST. JOSEPH Appeal of CORBY ESTATE.

No. 2.4930.

Supreme Court of Missouri, in Banc.

March 22, 1924.

Rehearing Denied May 13, 1924.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Proceeding by the City of St. Joseph to condemn certain real property for public park purposes. From a judgment fixing compensation, the Corby Estate appeals. Affirmed.

Eastin & McNeely and John E. Dolman, all of St. Joseph (Stephen S. Brown, of St. Joseph, of counsel), for appellant. Alva F. Lindsay, W. B. Norris, and Culver Phillip & Voorhees, all of St. Joseph, for respondent.

WALKER, J.

This action grows out of a proceeding brought by the city of St. Joseph to condemn certain lands therein for park purposes and to establish a benefit district to pay for same. This proceeding was under the authority of City Ordinance No. 8690, and involved, inter alia, the condemnation of the property of a large number of persons, including the Corby estate, certain portions of the real estate of which were located in the proposed park district. The jury of freeholders selected to ascertain the just compensation to be paid for the property taken or damaged by this proposed improvement and to make assessments to pay for the same, among a large number of other findings, awarded to the Corby estate, the sale appellant, the sum of $37,011 as a just compensation for the two parcels of land belonging to it which were condemned for the purpose stated.

The appellant's assignments of error, not as formally stated after the usual manner of our procedure but as gleaned from its statement and points and authorities, may be thus summarized: (1) That the verdict is contrary to the evidence; (2) that this proceeding is void because the appellant had no notice of same; (3) that the court erred in refusing to permit the appellant to impeach the verdict by the testimony of one of the jurors; (4) that the consolidation of six different proceedings in one hearing was error; (5) that Ordinance No. 8690 is void; (6) that the proceeding must fail because the total amount of benefits assessed was $163 less than the compensation and damages required to be paid.

I. A statement in detail of the testimony is not necessary in the determinaticin of its sufficiency to sustain the verdict. It will be enough to say, in regard to the value of" the property involved, that the testimony was not only voluminous but comprehensive, in that the values of the lands in question were considered from every practical basis. Rendered familiar, as the jury were, with all of the facts necessary to enable them to reach a just conclusion, this court, as an appellate tribunal, has no right to interfere with their finding. This is the rule in a law case, and even in equity we usually defer somewhat to the views of the trial court. Especially is this true where, as here, there is an utter absence of mistake, fraud, prejudice, or passion manifested in the rendition of the verdict.

Confirmatory of this conclusion it may be added that in a somewhat early case (St. Louis v. Lanigan, 97 Mo. loc. cit. 178; 10 S. W. 475), Judge Sherwood, speaking for the court, says, in effect: In cases of this sort the judgment of the commissioners is not formed exclusively upon the evidence submitted; they are required to view the premises and they have the advantage of an actual personal inspection, and they are to be guided to some extent by that. Selected because of their capacity and fitness for the position they are called upon to fill, required to be disinterested, sworn to the faithful discharge of the duties imposed, their report should not be set aside but upon satisfactory grounds. The testimony of witnesses as to value, whether heard before the commissioners or subsequently by the court on exceptions filed, although entitled to due consideration, is not controlling, and unless this court, as we have said, in like cases heretofore considered, is clearly satisfied that the jury erred in the principles on which they made their appraisal, we should not disturb the verdict.

Following the conclusion reached in the Lanigan Case and others which meet with our approval (Kansas City v. Bacon, 147 Mo. loc. cit. 279, 48 S. W. 860, and cases), we find no reason for questioning the propriety of the verdict or the conclusion reached by the trial court herein on account of the insufficiency of the evidence.

(a) It is contended that the opening statement made by one of the special counsel for the city constituted an admission binding upon the latter as to the value that should have been placed upon the land by the jury. The language of the counsel was as follows:

"Our position is, and, as I understand it, of those acting for the city, that the experts for the city can put the full market value upon this property, so there will be no mistake about it; that the city is contending that $1,000 an acre put on this property is every cent it is worth and not any more."

If this constituted a binding admission upon the city, then the weary days spent in taking the testimony to establish the values was but "leather and prunello"; and upon its being made, if of the character now attributed to it by the appellant, the court would have been authorized in closing the case and directing the jury to return a finding in accordance therewith. Pratt v. Conway, 148 Mo. 299, 49 S. W. 1028, and cases, 71 Am. St. Rep. 602.

A more reasonable interpretation of the statement, however, and the one which was evidently given to it at the time by the court and the parties, was that it was an expression of the individual opinion of the speaker, declaratory of his estimate as to the.maximum value that should be placed on the land and not its fixed value. Therefore, whatever latitudinary construction may be given generally to informal judicial admissions, to which counsel's remark must belong, if appellant's contention is correct, the language employed will not authorize it to be thus classified. No other meaning than that we have indicated can, under any reasonable rules of interpretation, be given to the words used. Moreover, if the language employed be held to sustain the conclusion that it may be classified as an admission, a serious question arises as to whether the speaker, clothed only with the power of a special counsel, could in a case of this character so commit the city, by the loose statement here attributed to him, as to preclude an examination into the values of the property involved, which constituted the sole subject of inquiry, and was vitally necessary to the determination of the city's power to exercise the right of eminent domain.

(b) While we deem the foregoing ample in reason and substance to sustain a ruling adverse to appellant's contention, another suggests itself. To authorize the appellant to interpose the counsel's statement to preclude the introduction of testimony and thus estop the city from showing that the land was worth less than $1,000 per acre, it was necessary that this defense be preserved in the record. Aside from the unauthorized incorporation of this statement in the transcript it nowhere appears. As inserted, it is entitled to no more consideration than a like incorporation of a counsel's address to the jury or a trial court's written opinion as to the reasons for his rulings. To have entitled the statement to consideration, counsel for appellant should have read it into the record, or have otherwise manifested a purpose to have it made a part of the proceedings of the trial.

The tribunal primarily entitled to determine the import and intent of this statement was the jury. Cent. Br. U. P. Ry. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 165, 2 R. C. L. § 69, p. 990. Unless, therefore, it was made a part of the proceedings, it could not be considered by them. Furthermore, it was necessary to an appellate review of this contention that the trial court be requested to limit the testimony to the terms of the admission and, upon an adverse ruling, to have urged the same as error in a motion for a new trial. When the statement was made, counsel for appellant, instead of seriously considering it as an admission binding upon the city, jocularly remarked that, if the special counsel "means $1,000 per foot, we will quit right now"; and with this sally of pecuniary and lineal humor the subject "is lost to sight," So far as the record shows, but is evidently "held to memory dear," as it again makes its appearance in the appellant's brief. Too late, however, to bridge the hiatus between the sally and its attempted appellate resurrection.

II. It is contended that the appellant had no notice of the hearing and was given no opportunity to be present on the assessment of damages or benefits, and as a consequence was deprived of its property without due process of law. Upon the filing of the ordinance authorizing this improvement an order was made by the circuit court, as required by section 7816, R. S. 1919, in which all parties interested were informed that on a day named therein a jury would be impaneled to ascertain the compensation to be paid to the owners of property taken or damaged and the benefits, if any, to be assessed to pay for same. That this notice was sufficient to confer jurisdiction on the court and to notify the appellant of the proceeding is not open to question. Kansas City v. Mastin, 169 Mo. 80, 68 S. W. 1037; Kansas City v. Duncan, 135 Mo. 571, 37 S. W. 513. Having been duly summoned for a particular purpose, it was in court for that purpose, and in contemplation of law so remains until the purpose is accomplished or the action disposed of or until the party is otherwise discharged according to law. Brown v. Marshall, 241 Mo. loc. cit. 747, 145 S. W. 810; State ex rel. Brown v. Wilson,. 216 Mo. loc. cit. 282, 115 S. W. 549. This is the general rule. That it applies in its fullness to proceedings of the character...