Kansas City v. Hennegan

• Decision Date: 11 March 1907
• Docket Number: 3,145.
• Citation: 152 F. 249
• Parties: KANSAS CITY v. HENNEGAN et al.
• Court: U.S. District Court — Western District of Missouri

152 F. 249

KANSAS CITY v. HENNEGAN et al.

No. 3,145.

United States Circuit Court, W.D. Missouri, Western Division.

March 11, 1907

E. C Meservey and W. A. Knotts, for plaintiff.

A. S Van Valkenburgh and Ritchie & Meyer, for defendants.

PHILIPS District Judge.

Kansas City desiring to extend what is known as its general 'Market Square' for the purposes of a public market its board of aldermen, by ordinance, approved by the mayor in conformity with the provisions of its charter, designated a large quantity of land to be condemned for such use. This area embraces perhaps a block or more of ground, laid off into lots, with buildings thereon, owned in severalty by a large number of persons. The ordinance also, as in such case provided in the charter, designated what is known as a 'benefit district,' to be assessed, in connection with the city itself, to raise the necessary means for paying for the private property to be taken and appropriated for such use. This benefit district embraces, say, 8 or 10 blocks of ground. The property within this large benefit district, as is usual, is owned separately by a vast number of persons. After the preliminary inquest before the mayor, as provided under the charter, an appeal was taken from the findings of the jury to the circuit court of Jackson county. A given portion of the real estate to be taken and appropriated by the city belonged to Richard H. Hennegan and Richard B. Hall-- said Hennegan owning a life estate therein, and the said Hall the estate in remainder. Hennegan and Hall being nonresident citizens of the state, in due time and form filed their petition in the state circuit court for removal of the case into this court, which was accordingly done. Kansas City has filed a motion to remand this cause, on the ground that the removing defendants did not have such a separable controversy as to entitle them to remove the whole cause into this jurisdiction. This motion has been heard and submitted.

The provisions of the charter of Kansas City in respect of condemnation proceedings are practically the same as stated in the Pacific Railroad Removal Cases, reported in 115 U.S. 3, 20, 21, 22, 5 Sup.Ct. 1113, 29 L.Ed. 319. That a proceeding instituted by a corporation or municipality to condemn private property to its public use so far partakes of the character of a suit at law as to render it removable from the state court into the proper federal court, where the conditions exist authorizing a removal as prescribed by the removal act of Congress, is no longer an open question in this jurisdiction. Union Terminal Railway Company v. C., B. & Q.R. Co. (C.C.) 119 F. 209; South Dakota Central Railway Company v. C., M. & St. P. Ry. Co., 141 F. 578, 73 C.C.A. 176; Traction Company v. Mining Company, 196 U.S. 240, 25 Sup.Ct. 251, 49 L.Ed. 462.

Most of the questions raised and discussed by counsel for Kansas City on the motion to remand were considered and ruled upon in the Pacific Railroad Removal Cases, 115 U.S., 5 Sup.Ct., 29 L.Ed., supra. That was a condemnation proceeding instituted by Kansas City under the same charter, in effect, as that here involved, to condemn to the city's use lands for the opening of Twelfth street in said city, extending through a large quantity of land belonging to separate owners. The decision in that case answers the suggestion of counsel for the city that the cases where it has been ruled that the nonresident citizen seeking the removal of the cause from the state to the federal court present the instance where the petitioner for removal was the sole defendant, and that the right of such nonresident property owner to remove the cause should be limited accordingly. The record in said Pacific Railroad Removal Cases, on file in the office of the clerk of this court, which is before me, shows that it was a proceeding by the city to condemn property, to the use of said street, owned in severalty by a great number of individuals and corporations, under an ordinance establishing a large benefit district wherein a vast number of persons owned in severalty tracts of land to be assessed for benefits to pay the damages for property taken. The Union Pacific Railroad Company owned a certain tract of land, part of which was sought to be condemned and appropriated absolutely for this street, and a part was within the benefit district designated to be assessed by way of benefits. A large body of defendants were citizens of the state of Missouri; yet the Union Pacific Railroad Company, as a nonresident corporation, was held to be entitled to remove the proceeding, on the ground that the controversy was wholly separable as between it and the city.

The case of Hennegan and Hall, the removing defendants in the case at bar, is stronger in favor of their right. The Union Pacific Railroad Company, in the Removal Cases, was concerned not only as to that portion of its land sought to be appropriated by the city, but also as to the portion within the district to be assessed for benefits. In the latter respect it was more or less directly interested with all the other similarly situated codefendants in the benefit district, whereas the whole property involved of Hennegan and Hall is sought to be taken. This being so, according to the opinion of Mr. Justice Bradley in said Removal Cases, the matter in which they are concerned is as to the amount of damages to be found in their favor, representing the value of their property, which, being separable from the other issues in the case, was therefore removable under the judiciary act. The defendants here raise no question of jurisdiction as to the right of the city to condemn this property. Whether or not any other person's land is to be taken, and the value thereof, Mr. Justice Bradley said, did not concern the removing defendant, as by express provision of the charter 'each piece of property taken is valued by itself, ' without reference to the proposed improvement,' and the amount of benefit to each piece of property benefited is ascertained separately without reference to the other pieces benefited. ' And therefore he held that 'this controversy involving these issues is a distinct controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is a distinct and separate one, and is capable of being tried distinctly and separately from the others.' The doubt cast upon the decisiveness of that ruling in this case arises on the following statement in the opinion of Mr. Justice Bradley:

'We have not been furnished by the counsel on either side with reference to any decisions of the Missouri courts giving construction to this section. Whether the direction that the cause shall be tried de novo requires that all the valuations and assessments are to be retried, or only those affecting the appellants, is not expressly stated.'

That opinion was filed in May, 1885. At the October term, 1884, of the Supreme Court of Missouri, the case of State ex rel. Holden v. Gill, 84 Mo. 248, was heard. When the opinion was filed does not appear; but from the condition of the docket of that court, known to the writer of this opinion then connected with the court, and the date of the publication of volume 84 of the Reports, it is altogether probable that this opinion had not been announced when Mr. Justice Bradley prepared the opinion in the Pacific Railroad Removal Cases.

The construction of section 3 of said charter was directly involved in the case before the Supreme Court of Missouri. The substantive effect of that construction was that the condemnation proceeding against the various defendants presented the case of an indivisible unit, to be tried to one and the same jury, unless trial by jury be waived, and the...