Kansas City v. Ashley, 51618

• Decision Date: 12 September 1966
• Docket Number: No. 51618,No. 1,51618,1
• Citation: 406 S.W.2d 584
• Parties: In re Proceedings Taking and Condemning Private Property in Kansas City. KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. James G. ASHLEY, Sr., et al., Respondents
• Court: Missouri Supreme Court

Page 584

406 S.W.2d 584

In re Proceedings Taking and Condemning Private Property in

Kansas City.

KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. James G. ASHLEY, Sr., et al., Respondents.

No. 51618.

Supreme Court of Missouri, Division No. 1.

Sept. 12, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 10, 1966.

Herbert C. Hoffman, City Counselor, Ned B. Bahr, Assoc. City Counselor, Benj. M. Powers, Sp. Counsel, for appellant.

Charles W. Hess, Kansas City, for respondnet, Ashley, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.

Abraham E. Margolin, Norman M. Arnell, Margolin & Kirwan, Kansas City, for respondents American Academy of General Practice, Inc., Twin Oaks, Inc., Althea Steil and Louis Mang.

Maurice O'Sullivan, Kemp, Koontz, Clagett & Norquist, Kansas City, for respondent Rock Springs Realty, Inc.

Seth Lacy, Lacy & Lacy, Kansas City, for respondent Meadow Park Land Co.

Loeb Granoff, Rich, Rich & Granoff, Kansas City, for respondents Safehi Realty Co. and Emma Seymour.

Terence M. O'Brien, Kansas City, for respondent Cecilia W. Bradley.

Dick H. Woods, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondents Second Presbyterian Church of Kansas City, Gladys Schnorf, Howard M. and Frances C. Gaston and Katz Drug Co.

Charles L. Carr, Kansas City, for respondents Theodore and Doris Aschmann.

HIGGINS, Commissioner.

Appellant's condemnation proceeding was dismissed upon respondents' motions to dismiss which raised a constitutional question of lack of power and authority in appellant to condemn a railroad right of way longitudinally.

Appellant is a constitutional charter city under Article VI, Section 19, Constitution of Missouri, 1945, V.A.M.S., and it brought this condemnation proceeding under Articles I and VI of its charter. Appellant's Ordinance 24408, together with the required plat prepared by appellant's city engineer, was filed as the pleading in this condemnation suit November 25, 1959. The ordinance provided in pertinent parts:

'WHEREAS, it is necessary for the convenience and safety of the public that a nonaccess freeway be provided to facilitate movement of north and south vehicular traffic to and from the congested downtown area and the outlying areas in a southerly section of the city; and

'WHEREAS, the right of way owned by Kansas City Public Service Company and now used for a single track railroad * * * to serve certain businesses and industries, to the extent that said right of way extends from the southerly line of Westport Road to the center line of Prospect Avenue in Dodson is deemed suitable and necessary for said nonaccess freeway for public use, NOW, THEREFORE,

'BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

'Section 1. That a nonaccess freeway or highway be and the same is hereby opened and established and shall be constructed from the southerly line of Westport Road to the center line of Prospect Avenue in the Dodson area, including in its boundaries the lands hereinafter described.

'Section 2. The following lots and tracts of private property hereinafter described are hereby condemned and taken for public use for said freeway * * *: (Here follow descriptions of property taken, same being a strip of land 100 feet wide and approximately eight miles long except for part of the strip which is 50 feet wide and 1,282 feet long.)

'Section 3. Said condemnation shall be subject to, and there are reserved to Kansas City Public Service Company, its subsidiaries, successors and assigns, such rights as Kansas City Public Service Company now has to use said right of way for railroad purposes, * * *. Such improvements as the City may make upon said freeway shall be at the expense of the City and the City shall have the right to cause the relocation of rails, ties, tracks, poles, wires, and other appurtenances within said right of way, at its own expense, but not in such manner as to prevent the rendition of adequate and efficient railroad service.

'Section 4. No abutting owners shall have the right of direct access to or from said freeway or its right of way, but this provision shall not be deemed to prevent the delivery of freight by or to abutting owners or others using the service of Kansas City Public Service Company, its subsidiaries, successors and assigns, for railroad transportation.

'Section 5. Just compensation for the private property herein condemned and taken, and damages accruing by reason of said improvement shall be assessed and paid according to law * * *.'

Several motions seeking dismissal of the proceeding alleging the ordinance to be invalid and unconstitutional were filed, after which appellant obtained a continuance to amend its ordinance 'as an amended pleading to clarify the interests intended to be taken and to indicate there was a taking of all of the railroad owner's right-of-way interest, and (deleting) the reservation.' The amended ordinance, Ordinance 26364, was filed August 28, 1961, and it provided in pertinent parts:

'WHEREAS, it is necessary for the convenience and safety of the public that a non-access freeway be provided to facilitate movement of north and south vehicular traffic to and from the congested downtown area and the outlying areas in the southerly section of the city; and

'WHEREAS, there is now pending in Division No. 3 of the Circuit Court of Jackson County, Missouri, Cause Mo. 621,035, a proceeding to condemn certain private property and rights therein for the right of way for a nonaccess freeway authorized by said Ordinance No. 24408, and by reason of pleadings filed in said cause, it appears necessary to clarify the description of the easement, rights, and interests intended to be condemned and taken thereby, and to describe the private property and rights taken with such particularity that all ambiguity therein be removed; and

'WHEREAS, for said reasons, it is necessary to strike out and repeal from said Ordinance 24408 all the provisions of Sections 1, 2, 3, 4 and 5, and to enact and insert in lieu thereof new sections 1 and 2, and re-enacting as a new section 3 the provisions of section 5 of said Ordinance 24408; and

'WHEREAS, the amendment of Oridinance No. 24408 in the above respects should be completed as soon as possible in order that said ordinance, as amended, may be filed promptly as an amended pleading in the aforesaid Cause No. 621,035 * * *. NOW THEREFORE,

'BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

'Section A. That Ordinance No. 24408, passed October 16, 1959, is hereby amended by striking out and repealing therefrom all of sections 1, 2, 3, 4 and 5 thereof in their entirety, and enacting in lieu thereof new sections 1, 2, and 3, and incorporating the same description by metes and bounds of the tracts condemned, and re-enacting as new section 3 the provisions of section 5 of Ordinace 24408, all relating to the same subject and plan of improvement, and which shall read as follows:

'Section 1. That a controlled access freeway or highway be and the same is hereby opened and established over and upon all of the lands described in Section 2 hereof by metes and bounds, extending from the southerly line of Westport Road to the center line of Prospect Avenue in the Dodson area, including in its boundaries the tracts hereinafter described.

'Section 2. All of the lands, property, interests, ownerships of or legal rights which are claimed by all parties in the following lots and tracts of private property is hereby condemned and taken for public use as an easement for a controlled or non-access freeway or highway, to be known as the Country Club Freeway, all of said lots and tracts being in Kansas City, Jackson County, Missouri, and described as follows: (Same as in Ordinance 24408.)

'Section 3. Just compensation for the private property herein condemned and taken, and damages, if any, accruing by reason of said improvement shall be assessed and paid according to law * * *.

'Section B. It is the intent of the Council that the plan of improvement incorporated in and all portions of Ordinance 24408, passed October 16, 1959, shall remain in full force and effect, except as to the aforesaid matter stricken and repealed therefrom and the new matter inserted in lieu thereof by way of amendment, for the purpose of clarifying and more particularly describing the rights and interests condemned herein.

'It is declared that the aforesaid changes do not constitute an abandonment of the proceedings in Cause No. 621,035, instituted pursuant to said Ordinance No. 24408, or affect the continuity of said proceedings except as to clarify the private property, rights and interests taken for public use.'

The Kansas City Public Service Company changed its name to Kansas City Transit, Inc., and the interest it owned in connection with this proceeding was transferred to its subsidiary, Kansas City and Westport Belt Railway Corporation, and it transferred the interest to respondents James G. Ashley, Sr., and James G. Ashley, Jr. The Ashleys contracted with the Belt Railway to continue railroad switching service in the same manner as they had rendered such public service under previous contract with the Kansas City Public Service Company and they were operating the railroad under tariffs filed with the Interstate Commerce Commission and the Missouri Public Service Commission at the time of the hearing when the proceeding was dismissed.

The motions to dismiss which resulted in the order of dismissal suggest three categories of movants-respondents: (1) The Ashleys as owners of the railroad right of way sought to be condemned; (2) American Academy of General Practice, Inc., Twin Oaks, Inc., Althea Steil and Louise Mang, Rock Springs Realty, Inc., Meadow Park Land Company, Emma Seymour, Safehi Realty Company, Cecilia W. Bradley, Second Presbyterian Church of Kansas City, Gladys Schnorf, Howard M. and Frances C. Gaston, and Katz Drug Company (Academy, et al.), owners of...