In re Twenty-First St.

• Citation: 196 Mo. 498,96 S.W. 201
• Parties: In re TWENTY-FIRST ST. KANSAS CITY v. HYDE.
• Decision Date: 30 May 1906
• Court: United States State Supreme Court of Missouri

96 S.W. 201

196 Mo. 498

In re TWENTY-FIRST ST. KANSAS CITY v. HYDE.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. EMINENT DOMAIN—EXTENSION OF STREET— EVIDENCE—ADMISSIBILITY.

In a proceeding under an ordinance to condemn land for the extension of a street terminating at the boundary of an owner's land, evidence of a contemporaneous ordinance for the widening of another street, so that the street as extended and the street as widened will meet and form a thoroughfare, is admissible.

2. SAME—JUDGMENT.

Where, in a proceeding under an ordinance to condemn land for the extension of a street terminating at the boundary of an owner's land, it appeared that, unless another street was widened as contemplated by a contemporaneous ordinance, the street as extended would be a cul-de-sac in the owner's land, the court should withhold its final judgment until judgments are reached in both proceedings; each proceeding depending for its success on the other.

3. SAME—EVIDENCE—ADMISSIBILITY.

Where the extending of a street is but a part of a general scheme, the court should know what the scheme is, in order to appreciate the value of the particular extension.

4. SAME.

Where the extending of a street is but a part of a general scheme, the scheme may be shown by contemporaneous ordinances or by the best evidence of which the fact is susceptible.

5. MUNICIPAL CORPORATIONS — ORDINANCES— —VALIDITY—EFFECT OF FRAUD.

A person injuriously affected by an ordinance may show that its passage was obtained by fraud or other unlawful means or for an unlawful purpose, and the fraud which will invalidate an ordinance is shown by proof of fraud, defined to be the willful doing of an unlawful act.

6. SAME — ESTABLISHMENT OF STREETS — AUTHORITY.

A city council has authority to establish streets for the purpose of public highways, and, when established, it has authority within certain bounds to allow railway tracks to be laid therein; but it has no authority to establish a street for the use of a private individual.

7. EMINENT DOMAIN—EXTENSION OF STREET — EVIDENCE—ADMISSIBILITY.

In a proceeding to condemn land for the extension of a street terminating at the boundary of an owner's land, evidence that the proceeding is for the use of an individual, and not for the purpose of establishing a street for public use, is admissible.

8. SAME—BENEFITS—ASSESSMENT.

In a proceeding to condemn land for the extension of a street terminating at the boundary of an owner's land, it appeared that the street, if extended, would form a cul-de-sac in the owner's land, and that on the widening of another street as proposed the street as extended and the other street as widened would meet. The proposed extension of the street gave to the owner of the land no connection that he did not have, and it cut him off from his connection with the right of way of a railway. Held, that the owner would not be benefited by the extension of the street sufficient to warrant the assessment of benefits in proceedings to condemn his land therefor.

9. EMINENT DOMAIN—PLEADINGS—SUFFICIENCY.

Where a city charter, prescribing the procedure in proceedings to condemn land, does not require formal pleadings, the filing by an owner, whose land is sought to be condemned for a street, of a motion averring that the ordinance providing for the street is invalid, because it provides for a taking of his property for a private use, sufficiently raises the issue as to whether the proceeding is to condemn his property for a private use.

10. SAME—QUESTION FOR COURT.

Where, in a proceeding to condemn land for a street, the owner of the land sought to be taken avers that the land is sought to be taken for a private use, the court must hear evidence on the issue, and, if satisfied that the proceeding is one to condemn property for the use of an individual, it must dismiss the proceeding.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Proceedings by the city of Kansas City to condemn land for the extension of a street. From a judgment awarding damages and condemning the land, Louis K. Hyde appeals. Reversed and remanded.

Lathrop, Morrow, Fox & Moore, for appellant. Edwin C. Meservey, for respondent.

VALLIANT, J.

In re Twenty-First street. This is a proceeding under an ordinance of the city to extend Twenty-First street into certain property of the defendant, Hyde, and for that purpose to assess his damages for the property to be taken or damaged, and to assess the benefits over a district prescribed by the ordinance, in which district is included remaining property of defendant. The jury assessed the defendant's damages at $5,000 and his benefits at $2,577.10, and from the judgment of condemnation that followed on those assessments the defendant has appealed.

Defendant Hyde owns a tract of land nearly square in shape, containing about 60,000 square feet, bounded on the east by Oak street 20 feet wide, west by an alley 18 feet wide, and on the south by the right of way of the Kansas City Belt Railway. Twenty-First street, 60 feet wide, coming from the west, terminates on the west line of defendant's property; its south line being nearly coincident with the south line of defendant's property. The diagram on the following page gives a general idea of the location.

Twenty-First street, as will appear from the diagram, does not extend across defendant's property, but it ends on the west against defendant's west line, and begins again going east at defendant's east line, and not then on a line with its own west end but considerably north of it. The ordinance in question does not aim to unite the two disconnected ends of Twenty-First street, nor to carry the street entirely through defendant's property, but to terminate it in defendant's property at a point 10 feet west of his east line; nor does the ordinance aim to carry the street to its full width even

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

as far as it purposes to go, but to the width only of 30 feet. Another feature of the route marked out by the ordinance is that after going 68 feet along the south line of defendant's land it changes course to the northeast to the terminus named and that too at an angle which, even if the course were extended to defendant's east line, would not connect it with that end of Twenty-First street.

Appellant contends that it appears on the face of the ordinance, when applied to the physical facts, above stated, that the public has no interest in this proceeding; that the extension of Twenty-First street as proposed would simply create a cul-de-sac in defendant's property which would be of use to no one, and that we think is correct. But to meet that objection the city undertook to prove that there was another fact to be considered which would show that this extension was for a public use and would serve the public, namely, that there was pending at the same time and in the same court another proceeding the purpose of which was to widen Oak street and bring it down to connect with this extension of Twenty-First street and to the right of way of the Kansas City Belt Railway Company. But, on the objection of defendant, the testimony offered by the city on that point was excluded. The idea advanced was that this case would have to stand or fall by its own strength and could not be helped out by another proceeding, the result of which was only problematical. We have now under consideration the appeal of this same defendant in the Oak Street Case (96 S. W. 206), both cases having been submitted for our judgment at the same time, and in that case, to meet the objection of the defendant that the widening and extending of Oak street would only carry it to an unprofitable end, the city offered to prove that it was, at the same time, moving to extend Twenty-First street so as to connect it with the widened and extended Oak street, but on like objection by the defendant that evidence was excluded. In spite of the ruling of the court, however, the evidence in its full force got to the jury and must have had its effect, because the jury could not, with reason, have assessed any benefits in this case if there was no purpose shown to connect the two streets. The court erred in excluding that evidence. Assuming that it was to the public interest that these two streets should be connected in the manner that they would be if both of those ordinances were carried into effect, and that the common counsel so determined, yet, since proceedings to widen or extend both streets cannot be embraced in one suit, it would be impossible to carry the scheme into effect if each proceeding had to rest alone on its own facts without taking into account the purpose of the other. If each proceeding depends for its success on a condition that does not already exist, but that can be brought about only by a successful prosecution of the other, and if neither can proceed until the other is finished, then the one defeats the other and both must fail. That cannot be the law. The danger suggested in the possible failure of the other proceeding can be avoided without any difficulty by the court in its control of its judgment; it can withhold its final judgment, or its ruling on a motion for a new trial, or otherwise suspend final action, until judgments are reached in both cases. Nothing that it is necessary for the court to know in order to reach a correct conclusion in a given case can be said to be irrelevant or immaterial.

If the opening or extending of a particular proposed street is but a part of a general scheme, the court should know what the scheme is in order to appreciate the value of the particular street in question. That scheme may be shown by contemporaneous ordinances if it has been put into that record form, or it may be shown by the best evidence of which the fact is susceptible, if it has not...