In re North Terrace Park

• Citation: 48 S.W. 860,147 Mo. 259
• Parties: In re NORTH TERRACE PARK. CITY OF KANSAS CITY v. BACON et al.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 25 June 1898
• Court: Missouri Supreme Court

48 S.W. 860

147 Mo. 259

In re NORTH TERRACE PARK.

CITY OF KANSAS CITY v. BACON et al.¹

Supreme Court of Missouri.

June 25, 1898.

EMINENT DOMAIN — PUBLIC PARKS — KANSAS CITY CHARTER — VALIDITY — LOCAL IMPROVEMENTS — SPECIAL ASSESSMENTS — DAMAGES — VERDICTS — CONCLUSIVENESS — NEW TRIALS — PROPERTY BENEFITED — QUESTION FOR JURY.

1. The charter of Kansas City, as amended June 6, 1895, adopted pursuant to Const. art. 9, § 16, providing that a city of more than 100,000 inhabitants may frame a charter for its own government, in so far as it provides a method of exercising the right of eminent domain, is not objectionable to the constitutional provision that such a charter shall always be in harmony with and subject to the constitution and laws of the state, in that Act April 1, 1893, empowers every city organized under section 16, art. 9, Const., to establish a system of parks under a certain procedure, since it expressly provides (section 18) that it shall not abrogate or impair any right or power which such cities may have, or might thereafter have, to buy or condemn parks.

2. The Kansas City charter, as amended on June 6, 1895, by providing a method for condemning land for city parks and for assessment of the damages and the special benefits, though prescribing a different mode than is prescribed by the general statutes, is constitutional, the fundamental principles of due and just compensation and an opportunity to be heard being secured to the landowner.

3. A 200-acre tract of land condemned for a city park, though it is for a public use, is also a local improvement conferring such benefits in the way of increased value to the land in the benefit district within which it is situated as to justify special assessments against private property in such district to pay therefor.

4. Under a provision in a municipal charter, where the land to be condemned for a public park was selected and the benefit district defined, the only questions of fact remaining being whether the realty in such district was specially benefited over all the property in the city at large, and, if so, the extent of the special benefit, the verdict of the jury in regard thereto, in the absence of error in the instructions, or fraud or misconduct of the jury, is conclusive.

5. A verdict cannot be impeached by the testimony of jurors as to the misconduct of themselves and their fellow jurors.

6. On a motion for a new trial of the damages and benefits accruing from condemnation proceedings, the court advised the counsel for the movants that the rule of his court required parties to submit their evidence on motions for new trial in the form of affidavits, and, unless good reason appeared, he would not depart therefrom. The movants then offered to establish certain facts by the oral testimony of a named person. There was no showing of any effort to obtain such person's affidavit, though he lived in the same city, and neither the counsel nor the movants filed their own affidavits to show that they had reason to believe the facts they averred. The movants were only two of the assessed landowners out of probably a thousand who were affected by the verdict. Held, that it was not an abuse of discretion to reject the offer of proof.

7. In the absence of any allegation, in a motion for a new trial of the damages and benefits in condemnation proceedings, of misconduct of the jury or of excessive assessments against the movants, evidence that the jury did not adopt the proper method in determining the benefits and damages is not relevant on the motion.

8. Where the verdict in condemnation proceedings described each tract condemned, with the owner's name, and its ascertained value, but the verdict was not brought up by the bill of exceptions, and where the parties, on appeal, stipulated that evidence was introduced tending to prove all the facts on which each instruction given was founded, appellants cannot urge excessiveness of the damages awarded or the illegality of instructions in regard thereto.

9. A verdict of one dollar against the city at large, as its share of the special benefits from the condemnation of 200 acres for a city park, cannot be said to be invalid as a matter of law, especially where the verdict was approved by the trial court, and only a very insignificant part of the testimony is preserved by the bill of exceptions.

10. Where the jury are to determine the amount of benefits to adjacent property by the laying out of a public park, it is for them to say whether certain property is benefited at all.

11. It is for the jury, in estimating the damages and benefits resulting from a condemnation of land for a city park, whether certain railroad, public-schools, and church property would be benefited at all by the establishment of a park in the vicinity, where the assessment of such property is not mandatory under the charter.

12. Const. art. 10, §§ 3, 4, 11, 12, limiting the annual rate of taxation and the debt-creating power of Kansas City to 5 per cent., do not apply to special assessments for local improvements which include the condemnation of land for a city park.

13. The creation of a park board to devise a system of parks for Kansas City, as authorized by the 1895 amendment to the charter, which simply imposes a limitation on the common council, in that it cannot act without a prior recommendation of the board, but confers no power on the board to legislate, is not invalid as a delegation of legislative power belonging to the common council.

Sherwood and Burgess, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; James H. Slover, Judge.

Condemnation proceedings by the city of Kansas City. Langston Bacon and another, landowners, appeal from the verdict assessing the damages and special benefits. Affirmed.

F. M. Black, Warner, Dean, Gibson & McLeod, Johnson & Lucas, Brown, Chapman & Brown, Ess & Georgen, Langston Bacon, and R. H. Field, for appellants. C. O Tichenor, D. J. Haff, C. S. Palmer, and R. B. Middlebrook, for respondent.

GANTT, C. J.

The appeal in this cause is from a judgment of the circuit court of Jackson county in a proceeding by Kansas City to condemn certain lands for a public park under an ordinance of said city, No. 6682, entitled "An ordinance to open and establish a public park in the North Park District in Kansas City, Missouri, to be known as North Terrace," approved July 26, 1895. The property taken and described in said ordinance is shown by the plat to consist of about 200 acres of land, extending in a general direction east and west something more than a mile from Garfield avenue, to the eastern city limits, and lying south of the Chicago & Alton Railroad track, and includes the summits of the bluffs which overlook the Missouri river and the adjacent country. The charter of Kansas City was adopted and became operative May 9, 1889, in pursuance of the power granted by section 16 of article 9 of the constitution of Missouri, which provides that "any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government consistent with and subject to the constitution and laws of this state," etc., and providing, further, that such charter "may be amended by a proposal therefor, made by the lawmaking authorities of such city, * * * and accepted by three-fifths of the qualified voters of such city, voting at a general or special election, and not otherwise." On June 6, 1895, the charter was amended by a three-fifths vote of the qualified voters, in accordance with this constitutional permission. By the first section of the first article of the said charter, Kansas City was empowered to acquire lands "for public parks, cemeteries," etc. By the amendment of June 6, 1895, provision was made for the appointment of a board of park commissioners, whose duty it was made to devise a system of public parks for the use of the inhabitants of said city, and the common council was authorized and empowered to provide by ordinance for the purchase, condemnation, or otherwise obtaining land for public parks, etc. By the seventh section of the amendment the territory within the then city limits was divided into three park districts, to be known as "West Park District," "North Park District," and "South Park District," and the boundaries of each specifically outlined; and by section 8 it was made the duty of the park commissioners to provide at least one park in each park district. By section 10 of the amendment, whenever the common council determines to condemn land for a public park, it is required to provide by ordinance the time and mode of payment of special assessments upon the real estate within the limits within which private property shall be deemed benefited by the proposed improvement, and be assessed and charged to pay compensation therefor. By ordinance No. 6682 the benefit district prescribed in the North Park District included that part of the city lying north of Fifteenth street, and east of Main street, between Fifteenth and Ninth streets and the Missouri river. The ordinance provides for special assessments against private property within the benefit district, which may be paid in 20 annual payments or installments, in accordance with the charter. It may be well to remark at this point that it is not questioned that the ordinance was regularly passed, and it is conceded that all the parties were properly brought into court, — both those whose lands are condemned and taken for the park, and those whose lands are to be charged within the benefit district. Six hundred and ninety-nine different tracts, lots, or parcels were condemned for the park, and about 18,000 separate tracts assessed to pay the costs of said park. The assessed valuation of the land without the improvements in the said benefit district is $12,609,930, which is shown to be about one-third its actual value, and the total cost of the park $603,113.04. In other words,...