Kansas City v. Boruff

• Citation: 243 S.W. 167,295 Mo. 28
• Decision Date: 26 June 1922
• Docket Number: No. 37008.,37008.
• Parties: KANSAS CITY v. BORUFF et al.
• Court: United States State Supreme Court of Missouri

243 S.W. 167

295 Mo. 28

KANSAS CITY v. BORUFF et al.

No. 37008.

Supreme Court of Missouri, in Banc.

June 26, 1922.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit by Kansas City against Kate Boruff and others, wherein condemnation was sought, under Ordinance No. 37008, of certain land in the West Park District. From a judgment nisi condemning the land and awarding damages, defendants appeal. Judgment nisi affirmed.

With slight omissions and statements, the counsel for appellants have fairly outlined the case, and is as follows:

"This is a proceeding in condemnation, whereby the city of Kansas City, Mo., seeks to condemn under its charter powers certain lands within its limits, as an enlargement and addition to Penn Valley Park.

"In a general way, the area condemned consists of all the tracts of ground situated within the following described limits:

"The west line of Main street on the east; the east line of Central street on the west; the south line of Twenty-Fifth street on the north; and Penn Valley Park on the south.

"These appellants are all owners of land taken by this proceeding. The ordinance which is the basis of the proceeding was approved by the city council on the 11th day of February, 1920, pursuant to a resolution which the board of park commissioners had adopted prior thereto. The court proceeding was inauguarated by the filing in the office of the clerk of the circuit court of Jackson county, Kansas City, Mo., a certified copy of the ordinance on the 4th day of March, 1920.

"On the same day that the certified copy was filed, the court made its order of publication, which by its terms was returnable on the 5th day of April, 1920. After various preliminary motions and orders, a jury of freeholders was chosen on the 24th day of April, 1920, before whom the cause proceeded to trial on the 7th day of June, 1920.

"The verdict of the jury assessing the damages for the property taken and spreading the benefits was returned on the 11th day of October, 1920.

The property owned by these appellants and the amounts allowed by the jury therefor were as follows:

                Joseph A. Guthrie, Owner
                  Tracts 12 and 13, being 40 ft. at the
                  Southwest corner of 26th and Main
                  streets ................................   $4,026 00
                Eva J. DeObert, Owner
                  Tracts 14 and 15, being 25.55 ft. adjoining
                  the above on the south ................     2,680 00
                Austin Real Est. & Agency Co., Owner
                  Tracts 18 and 19, being lots 37 and 38
                  in Bouton's Second addition ...........     7,500 00
                Wm. S. and J. E. Buchanan, Owners
                  Tracts 20, 21 and 22, being lots 39, 40
                  and part of lot 41, in Bouton's Second
                  addition ...............................    7,906 50
                Ida C. Robinson, Owner
                  Tracts 23, 24 and 25 and 26, being lots
                  42 and 43 and part of lot 41, and part
                  of lot 44, in Bouton's Second addition     14,837 40
                Edwin Austin, Owner
                  Being parts of lots 46 and 47, in Bouton's
                  Second addition .......................     9,900 00
                John M. Surface, Owner
                  Tract 54, being lot 5, block 5, Sheidley
                  Park ..................................     3,750 00
                W. W. Brooks, Owner
                  Tract 67, being lot 19, block 3, Sheidley
                  Park ..................................     4,000 00
                Margaret Keith Hastings, Owner
                  Tract 99 and 100, being lot 1 and 2
                  Block 6, Sheidley Park ................     9,000 00
                John G. Parker, Owner
                  Tracts 101, 102, being lots 3 and 4, block
                  6, Sheidley Park ......................     8,000 00
                James E. Burke, Owner
                  Tract 105, being lot 7, block 6, Sheidley
                  Park ..................................     6,000 00
                Julius and Ada Von Briesen, Owners
                  Tract 123, being north 35 ft. of lot 36
                  block 7, Sheidley Park ................     5,000 00
                Theresa J. Jagodnigg, Owner
                  Tracts 137 to 141, inclusive, being lots
                  1, 2, 3, 4, and 5, block 2, Sheidley Park  12,500 00
                August T. Fromwell, Owner
                  Tracts 155 and 156, being parts of lots
                  18 and 19 in Bouton's Second Addition
                  Sheidley Park .........................     1,950 00
                Christian Schock, Owner
                  Tracts 159 and 160, being lots 21 and
                  22, in block 2, Sheidley Park .........     4,500 00
                Asa E. Field, Owner
                  Tracts 120, 121 and 122, being lots 25
                  26 and 27, block 2, Sheidley Park .....    20,500 00
                                                          ____________
                                                           $122,049 90
                

"Motions for a new trial were duly filed by each of the appellants, and the same were on the 20th day of November, 1920, by the court overruled, and the verdict of the jury on said date was by the court approved and judgment was entered accordingly.

"These appellants by appropriate proceedings have prosecuted this appeal from said judgment. Other pertinent facts will be mentioned in the argument.

"It may be added that the testimony tended to show, and we feel warranted in saying, that it was broadly conceded at the trial that the condemned area was to be used as a site for what is commonly known as the Liberty Memorial. In this connection the motion of the respondent seeking to advance this case upon the docket of the court, wherein it is so stated, is referred to."

The latter paragraph of this statement is the one in question.

There were 188 tracts or parcels condemned and these appellants represent some 31 of that number. The lands condemned consisted of about 25 acres of very rough land, not specially fitted for business or residence property. It lies near the present Union Station, and much of it was bought up by speculators about the time the station was located. They perhaps overpaid in their anxiety to speculate.

Appellants make the following assignments of error in their brief:

"I. The court committed error in admitting evidence offered over the objection of these appellants by the claimant Mazda Realty Company, as to the prices paid by said Mazda Realty Company for lands purchased by it after the condemnation proceedings had begun, which lands were also at the time under condemnation by this proceeding.

"II. The court erred in overruling the offer made by the appellants to prove that Mr. Walter S. Dickey had publicly announced that he would turn over his property in the condemned district for memorial purposes at any price the Memorial Committee would fix for it.

"III. The court erred in that after this cause was submitted to the jury at the May term, 1920, of said court, to wit, on the 14th day of June, 1920, it continued said cause for further proceedings until the 1st day of the September term, 1920, to wit, September 13, 1920, and proceeded further with the trial of said cause at said September term.

"IV. The order of publication was not published in the manner required by law.

"V. The court erred in overruling the motions for new trial filed in this cause by each of the appellants herein, in which all of the above assignments of error were duly made, and to the overruling of which appellants duly excepted.

"VI. The order of publication having been made in a newspaper called the Daily Record, which was not the newspaper to which the board consisting of the circuit judges of Jackson county, Kansas City, Mo., had in pursuance of the state statutes given the contract for printing and publishing legal notices, and which was at the time the only newspaper in which said order of publication could be legally published, there was in effect no publication of said order."

Two of the appellants (Brooks and Parker) add the following other assignments:

"(1) The court erred in refusing to give instruction No. 1 and marked `Aleshire 1.'

"(2) The court erred in refusing to give instruction marked `Aleshire No. 2.'

"(3) The verdict of the jury was against the evidence and against the weight of the evidence and conclusively showed claimants' property to be worth three times the amount so allowed by the jury, and amounts to confiscation of the property."

This suffices to outline the case.

Henry S. Conrad, Clarence S. Palmer, M. S. Garrard, Wilkinson, Wilkinson & Dabbs, Reinhardt & Schibsby, T. A. Milton, Ed. E. Aleshire, Omar E. Robinson, and Conger Smith, all of Kansas City, for appellants.

D. M. Harber and Benj. M. Powers, both of Kansas City, for respondent.

Spencer F. Harris, of Kansas City, amicus

GRAVES, J. (after stating the facts as above).

I. This is a straight proceeding for the condemnation of lands for, a public park. There is hint in the record that a memorial was to be erected thereon. Suffice it to say that such question cannot be seriously involved here, because this is, as stated supra, an action to condemn land for park purposes instituted by the city. What the city may later place in this park is a matter to be determined by the city. Of course, its conduct of the park must be within legal bounds. This record is purely one of condemnation for a public purpose.

The first real question in the case is the alleged error in the admission of evidence. The Mazda Realty Company bought up a number of tracts in this proposed park. It is clear that a portion, if not all, was contracted for prior to the passage of the ordinance. Some of it may have been contracted for after its passage. The deeds came mostly after the passage of the ordinance directing the condemnation of the property. Evidence was admitted (put in by the Mazda Realty Company) as to what said company had paid for the several tracts which it bought. One or two of these appellants made the specific objection that the evidence was incompetent, because the purchases were made after the condemnation ordinance was made public. This objection was lodged specifically as against tract No. 10, the purchase of which may have been made by the Mazda Company, after the passage and publicity of the ordinance. The objection was based upon the theory that the land was no longer upon the open market. The theory of the objection is wrong. The land was upon the open market. The owner had the right to sell, and the purchaser the right to buy. Th...