In re Independence Avenue Boulevard

• Decision Date: 19 March 1895
• Parties: In re INDEPENDENCE AVENUE BOULEVARD. Appeal of SMART et al.
• Court: Missouri Supreme Court

30 S.W. 773

128 Mo. 272

In re INDEPENDENCE AVENUE BOULEVARD.

Appeal of SMART et al.

Supreme Court of Missouri.

March 19, 1895.

MUNICIPAL CORPORATIONS — ESTABLISHMENT OF BOULEVARDS — EMINENT DOMAIN — PROCEDURE — DAMAGES.

1. The authority to establish a boulevard or widen streets, conferred upon the mayor and council of Kansas City by article 3, § 1, cl. 7, of the city charter, was not abrogated by article 10, § 3, of the charter amendments requiring the board of park and boulevard commissioners to select routes and streets for the establishment of boulevards, and to recommend its action to the council, which is thereupon required to act upon such suggestion; and such selection and suggestion by the board are not an essential prerequisite to action being taken by the city council.

2. An effort by the city to acquire the lands by amicable agreement is not essential to the maintenance of condemnation proceedings of lands for the establishment of boulevards, under article 7 of the Kansas City charter relating to the taking of private property for boulevards, which does not vest any authority in any officer or agent to agree with the owner, or provide any fund for payment in case the agreement can be effected.

3. The filing of the map is not jurisdictional, and the failure of the mayor's record to recite such filing is not fatal to the validity of proceedings to condemn lands for street and boulevard purposes, under article 2 of the Kansas City charter, requiring a map to be filed with the mayor describing the land sought to be condemned, and giving the names of the owners or claimants, without containing any requirement that a record should be made of its filing.

4. A general objection to the whole panel of jurors, on the ground of their disqualification, in proceedings to condemn land for street purposes, is insufficient, on appeal, as an objection to a particular juror because of his having been a member of the council for the proposed boulevard when the ordinance was passed.

5. The fact that the city is plaintiff, and that there are corporate defendants in proceedings to condemn property for street purposes, does not entitle the other parties thereto, whose lands are sought to be condemned, to demand a trial by jury of twelve men, where such right is waived or not asserted by the corporate plaintiffs or defendants, under Const. art. 12, giving the right of jury trial in all trials of claims for compensation in eminent domain proceedings, in the result of which an incorporated company should be interested; Const. art. 2, § 21, providing in all other cases for a jury of three.

6. It is not error, in such proceedings, to exclude evidence tending to show that a certain benefit district defined and established by the ordinance providing for the improvement was unreasonably small, as the area of the district is a question addressed to the legislative power vested in the city council, and not for the jury.

7. That the use which is shown on the face of the record to be a public one is not such in fact, and the condemnation proceedings therefor unjustifiable, is not established merely because the commissioners assessed only one dollar against the city at large, and the entire cost of the improvement was paid by the abutting owners.

8. It is proper, in such proceedings, for the court, in conformity with the determination of the council and the provisions of article 7, § 3, of the charter, to direct the jury to ascertain the whole amount of the damages, and assess against the city the amount of benefits to it and the public generally, and then assess the balance of the damages against the property in the benefit district.

9. The mere fact that the verdict in such proceedings assessed the benefits to the city at one dollar will not justify the setting aside of the verdict as unjust and discriminating, where the verdict is based upon the conflicting testimony of numerous witnesses, and views of the premises by the jury, extending over a period of several weeks.

10. Property owners appealing from the judgment in such proceedings cannot urge, as a ground for reversal, defects or irregularities in the verdict affecting only the rights of others, who do not appeal or complain, nor the failure to allow compensation to a party who was duly notified that his land would be taken, and of the time and place of the hearing.

11. A mistake in the description, affecting a certain lot in the verdict, is immaterial, when it is obviated by the correct description thereof being contained in the ordinance providing for the condemnation proceedings.

12. Such proceedings are not invalid on the ground that the record does not disclose the state or county in which the property sought to be condemned is situated, since article 1, § 2. of the charter, which is a public act of which the court takes judicial notice, provides that the corporate limits of Kansas City shall include all that district of country in the county of Jackson, state of Missouri.

Barclay, J., dissenting.

In banc. Appeal from circuit court, Jackson county; M. A. Fyke, Special Judge.

Proceedings before the mayor of Kansas City, under a city ordinance, to condemn lands for the purpose of widening Independence avenue and other streets, and establishing a boulevard. Motions to dismiss the proceedings overruled, and judgment rendered establishing a boulevard and widening the street, in accordance with the petition, and assessing the expense upon abutting property. Appeal by certain of the property owners assessed therefor. Affirmed.

The Realty Investment Company, also an appellant, has dismissed its appeal in this court.

These proceedings were commenced before the mayor of Kansas City, under Ordinance 4972 of that city, approved April 7, 1893, to condemn, for the purpose of widening said street and establishing a boulevard, a strip of land 10 feet wide on each side of Independence avenue, from Woodland avenue, on the west, to Gladstone avenue, on the east, excepting a short distance on the south side of the street; also a strip of land 15 feet in width on each side of Gladstone avenue, from Independence avenue to St. John avenue; thence a tract or strip of land through the Vineyard property, described by straight lines and curves running northeastwardly to the west end of Scarritt avenue; and from that point, east, it took a strip of land 15 feet wide on each side of Scarritt avenue to the eastern limits of the city. At the same time, and as a part of the same ordinance, the common council determined and prescribed a benefit district, within which private property should be deemed benefited by the proposed improvement, which extended back 150 feet from the line of the proposed boulevard. From the verdict in the mayor's court the appellants appealed to the circuit court of Jackson county, at Kansas City. On the 9th of October, 1893, a transcript of the proceedings before the mayor was filed in the office of the circuit court, certified by the city clerk. Various changes of venue were asked for, and finally, upon the disqualification of Judge Henry, M. A. Fyke, Esq., a member of the bar, was elected special judge to try the cause.

When the cause came on for trial in the circuit court, and on the 1st day of November, 1893, the defendants Alice M. Smart and D. O. Smart filed a motion to dismiss for the following, among other, reasons, to wit: First, because the record fails to show that the city engineer delivered to the mayor a statement, by map, plat, or otherwise, containing a description of the property to be taken, with the names of the owners thereof; second, because the record fails to show that the board of park and boulevard commissioners selected the route for the proposed boulevard; third, because the ordinance under which the proceedings were had was unlawful and irregular, in that it prejudged and predetermined that the city was not to be benefited beyond the sum of $500. Thereupon, the city filed a motion asking leave to amend the record by filing, in addition to the original transcript already filed, a certain statement, alleged to be a part of the record, showing the delivery to the mayor of a statement, by map or plat, containing a description of the property, and the names of the owners, and also asking leave to file a certified copy of the resolution of the board of park and boulevard commissioners, together with the approval of the board of public works. The above motion coming on to be heard on the 20th of November, 1893, evidence was submitted which showed the following facts: First, the original transcript filed with the circuit clerk did not contain a copy of the resolution of the board of park and boulevard commissioners selecting the route for the proposed boulevard, nor the approval thereof by the board of public works; second, the original transcript contained no reference whatever to any such resolution, or to any such approval thereof; third, the evidence was uncontradicted that the resolution of the board of park and boulevard commissioners selecting the route, with the approval thereof by the board of public works, was not presented to nor received by the lower house of the common council at the time Ordinance No. 4972 was passed, nor at any time previous thereto; fourth, such resolution and approval were not filed with the mayor, nor offered in evidence, nor used in any way, in the mayor's court while these proceedings were pending therein; fifth, the evidence showed that there was no statement, recital, or reference in the original transcript filed in the circuit court showing that the city engineer of the board of public works, or one of his assistants, had made out and delivered to the mayor a statement, by plat, map, or otherwise, containing a description of the private property to be taken, and the names of the owners thereof. To sustain the motion to amend, there was offered in evidence by the city a book labeled "...