Kansas City v. Kansas City Terminal Ry. Co.

• Decision Date: 22 December 1917
• Docket Number: No. 20229.,20229.
• Parties: KANSAS CITY v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Supreme Court

201 S.W. 541

KANSAS CITY v. KANSAS CITY TERMINAL RY. CO.

No. 20229.

Supreme Court of Missouri, Division No. 1.

December 22, 1917.

Rehearing Denied March 4, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Proceeding to abate a grade crossing by Kansas City against the Kansas City Terminal Railway Company in which Neiswanger Estate Company and Simcoe Realty Company claimed damages. From the judgment, the railway company appeals. Appeal dismissed.

This proceeding was commenced in the circuit court of Jackson county, Mo., on August 20, 1915, by Kansas City filing in said court a certified copy of Ordinance 22345, approved June 3, 1915, and a plat, as required by the charter of said city. It was instituted and prosecuted under articles 6 and 7 of the present charter of said city. The purpose of the proceeding was to abate a grade crossing where the Kansas City Terminal Railway crossed Fifteenth street in said city; to determine the damages and benefits caused by the construction of a subway under the tracks of said Terminal Railway Company, at Fifteenth street in said city; and the grading of Fifteenth street, Askew avenue north of Fifteenth street, and Cleveland avenue north of Fifteenth street, in order to carry the last-named street under the tracks of said railway company, and in order to conform Askew avenue and Cleveland avenue to the new grade of Fifteenth street. The latter, at the time of trial in 1915, crossed the tracks of said terminal company at grade. Appellant in its original brief, at page 2, says:

"The sole question involved at the trial was the amount of damages to abutting property. The question of benefits to property in the benefit district not damaged, was eliminated by the terminal company voluntarily assuming the payment of benefits which would otherwise have been assessed against property not damaged." (Italics ours.)

Only three of the tracts claiming damages are discussed by appellant on this appeal, to wit, tracts 6 and 7, owned by the Neiswanger Estate Company, and tract 8, owned by the Simcoe Realty Company. Tracts 6 and 7 are both located on the north side of Fifteenth street, tract No. 6 extending from the right of way of the terminal company east to Cleveland avenue, and tract 7 extending from the right of way of the terminal company west to Askew avenue. Tract 8 is located on the east side of Askew avenue, immediately north of tract 7. The situation is more fully shown on the plat marked "Exhibit 2," contained in Appellant's Appendix B, filed as part of the abstract of record herein. The commissioners awarded as damages to tract 6 $10,750, tract 7, $14,500, and tract 8, $1,500, and assessed all the benefits against the right of way of the terminal company.

On September 19, 1916, the board of commissioners filed, in the circuit court aforesaid, their report. The abstract recites that:

"Said verdict or report awarded damages to property in the total sum of thirty-nine thousand two hundred and eighty dollars ($39,280.00), and assessed benefits as follows:

"Against Kansas City, the sum of three thousand one hundred three dollars and twenty cents ($3,103.20).

"Further against Kansas City, one dollar ($1.00).

"Against various portions of right of way of Kansas City Terminal Railway Company, thirty-six thousand one hundred eighty-one dollars and eighty cents ($36,181.80)."

On September 22, 1916, during the regular September term, appellant filed a motion for a new trial. The final judgment of said court, as shown by the certified copy filed by appellant herein, was rendered on January 3, 1917, during the regular November term of said court. The affidavit for appeal was filed January 6, 1917, during said November term, 1916. Appellant filed in this court on January 26, 1917, a short transcript containing said judgment of January 3, 1917, and the order granting an appeal, dated January 6, 1917. Time for filing appellant's bill of exceptions was extended from time to time, and finally it was filed on September 11, 1917.

Such other matters as may be deemed important will be considered in the opinion.

Samuel W. Moore and Samuel W. Sawyer, both of Kansas City, for appellant. J. A. Harzfeld and Francis M. Hayward, both of Kansas City, for respondent Kansas City. Ingraham, Guthrie & Durham and Piatt & Marks, all of Kansas City, for claimants Neiswanger Estate Co. and Simcoe Realty Co.

RAILEY, C. (after stating the facts as above).

I. This proceeding was commenced in the circuit court in Kansas City, Mo., under articles 6 and 7 of the charter of said city, to abolish the grade crossing at the intersection of Fifteenth street, in said city, with the Kansas City Terminal Railway. The proceeding aforesaid was inaugurated by the filing in said circuit court of a certified copy of Ordinance No. 22345, approved June 3, 1915, with a copy of the map or plat provided for in section 3 of article 7 of the charter. Appellant recites in its brief that it raises no question as to the validity of said ordinance nor of the proceeding thereunder. It claims, however, that the owners of tracts 6, 7, and 8 were allowed grossly excessive damages by the commissioners, and that errors occurred during the progress of the trial in assessing the damages sustained by abutting property owners, which, in part at least, account for the alleged excessiveness of the awards. After the necessary parties were brought before the court, and after the six commissioners were appointed to apportion the benefits, and to assess the damages sustained by abutting property owners, Mr. Sawyer, counsel for the Terminal Railway Company, and in its behalf, announced to the commissioners that the benefit district might be ignored, and that no private property need be assessed with benefits, except that of the Kansas City Terminal Railway Company. As said in the brief of appellant:

"The question of benefits to property in the benefit district not damaged was eliminated by the terminal company voluntarily assuming the payment of benefits which would otherwise have been assessed against property not damaged."

The issues before the board of commissioners, with the above matter eliminated, is tersely stated in appellant's brief, as follows:

"The sole question involved at the trial was the amount of damages to abutting property."

It is manifest that the Terminal Railway Company occupied the same position, with reference to the subject-matter of the litigation, as any other party in the benefit district liable to assessment. It was therefore neither a necessary nor a proper party in the proceedings to assess the damages sustained by abutting property owners. This conclusion is recognized by appellant in its reply brief, where it is said:

"Though the charter has provided for both branches being heard by the same jury, a party to one branch of the case has no absolute right to be a party to the other branch of the case. The owner of property in the benefit district, therefore, has no absolute right to be a party to the branch of the case relating to the acquisition of the property."

Appellant's reply brief also contains the following:

"We concede that the cases of State ex rel. Tuller v. Seehorn, 246 Mo. 568 and Kansas City v. St. Louis & K. C. Land Co., 260 Mo. 395 hold, as a general proposition, that the owner of property in the benefit district is not entitled as a matter of right to be heard in the trial court on questions relating solely to the amount of damages."

It is manifest from the most casual reading of the charter, in reference to above subject, that it was not the intention of the framers thereof to allow the officers of the city in charge of its litigation to prolong the same by inviting or allowing any or all of those charged with benefits to manage and control the same; and especially so, after the city is satisfied with the action of the commissioners and fails to appeal the case. It is evident that the framers of the charter were attempting to provide a speedy remedy for the settlement of such questions, and were not intending that the officers of the city, in carrying out the provisions of the organic law, should thwart its manifest purpose by inviting a prolongation of same. We...