Kansas City v. Metropolitan Water Co.

• Citation: 164 F. 728
• Parties: KANSAS CITY v. METROPOLITAN WATER CO.
• Decision Date: 10 October 1908
• Court: U.S. District Court — District of Kansas

164 F. 728

KANSAS CITY v. METROPOLITAN WATER CO.

United States Circuit Court, D. Kansas, First Division.

October 10, 1908

Miller Buchan & Miller, Samuel Maher, and Willard P. Hall, for complainant.

H. L Alden, City Counselor, for defendants.

POLLOCK District Judge.

At the 1908 Special Session of the Legislature of this state (Laws 1908, p. 30, c. 33), there was enacted a law conferring upon cities of the first class the power of condemning and taking over the property, or any part thereof, of any water company located in any such city, which act, in so far as material to this inquiry, provides, as follows:

'Section 1. That any city of the first class having a population of over fifty thousand is hereby empowered to acquire by the exercise of the right of eminent domain the whole or any part of any water-supply plant, including all pipes, mains and other appurtenances and rights and property, real or personal, of every kind pertaining thereto, situated either within or without such city or partly within and partly without such city; and it is further empowered to acquire by the exercise of the power of eminent domain any other property owned by any person or corporation, real or personal, necessary to the construction, improvement, extension, enjoyment or maintenance of a water-supply plant or the furnishing of water to such city and its inhabitants, situated either within or without any city.

'Sec. 2. The mayor and council of any city desiring to exercise the power of eminent domain for the purpose hereinbefore mentioned shall by resolution declare it necessary and for the best interests of the city to proceed under the provisions of this act to acquire for said city such property, describing the property condemned and appropriated.

'Sec. 3. Upon the passage of such resolution as is specified in the next preceding section, the city passing the same may apply to the judge of the district court of the county in which said city is located, or to the judge of any court of general jurisdiction having a clerk and seal of the county in which said city is located, for the appointment of three commissioners to make appraisement of the value of the property so condemned and for the assessment of all damages. Said commissioners shall be residents and freeholders of the county in which said city is located. Such appointment shall be made by the judge of the court on the written application of the city by its attorney or legal representative; the appointment shall be made in writing, under the hand of the judge, and delivered to the city applying therefor; the application for the certificate of appointment shall be recorded in the office of the register of deeds of the county in which said city is located. In case any vacancy occurs, or any such commissioner or commissioners refuse to serve on such board, the judge of the court to which application is made shall appoint, in the manner herein provided, some other person or persons having the qualifications herein provided. Such commissioners shall be sworn to honestly and faithfully discharge their duties as such commissioners.

'Sec. 4. Upon their appointment and qualification the said commissioners shall give notice of the time and place of their meeting to value property sought to be acquired by the city and to assess the damages. Such notice shall be addressed 'to whom it may concern,' and given by publication for thirty successive days (excluding Sundays) next preceding the time fixed for said meeting in some daily newspaper published in such city. Said notice shall specify that the purpose of the meeting of the said commissioners is to ascertain and determine the value of property condemned and the damages. At the time fixed by said notice, or at the time to which said meeting may be adjourned, the said commissioners shall proceed to ascertain and determine the value of the property condemned by the city and the damages. They may examine experts and resort to all means within their power to arrive at the value of the property condemned, and the owner or any one interested therein, or who may be affected by the condemnation proceedings, may be heard before said commissioners, and may produce such testimony before them to enable said commissioners to arrive at the fair and equitable value of the property condemned and the damages. The said commissioners may adjourn as often and for such length of time as may be deemed convenient, and may during any adjournment perfect or correct all errors or omissions in the giving of notice by serving new notices or making new publications, citing corporations or individual property owners who have not been notified or to whom defective or insufficient notice has been given, and notice of any adjourned meeting shall be as effective as notice of the first meeting of the commissioners.

Upon the completion of their hearing and deliberations the said commissioners shall make their report in writing, and shall forthwith file the same with the clerk of the county in which the city is located. Said report shall be filed within twenty days from the date of the last meeting of said commissioners.'

'An appeal shall be had to the district court of the county in which such city is located by the owner or any person interested or aggrieved, from the determination of the commissioners as to the value of the property appropriated and for all damages sustained by such interested or aggrieved party, in the same manner as appeals are granted from the judgment of a justice of the peace to the district court; and said appeal and all subsequent proceedings shall only affect the amount of compensation to be allowed, and shall not delay the city in taking possession of the property condemned, if said city shall deposit with the treasurer of the county in which said city is located, as herein provided, for the use and benefit of the owners of said property or others interested therein, including parties having liens thereon, the amount of the award allowed. Upon the making of said deposit said city may at once take possession of the property condemned and manage and control the same as hereinafter specified. Said city shall, in addition to the amount awarded by the commissioners, be liable for such sums in excess thereof as may be recovered on any appeal, and for the costs of said appeal, but if judgment for a less sum than awarded by the commissioners is recovered, the city shall not be liable for a sum in excess of such judgment nor for the costs of said appeal.'

'Sec. 7. Within ten days after the commissioners shall file their report and proceedings under this act it shall be the duty of the mayor and council of the city instituting the condemnation proceedings herein provided for to call a special election in said city for the purpose of submitting to the electors of said city a proposition to vote bonds to raise money to pay the amount of the award made by the commissioners in their report. If a majority of the electors voting upon the proposition so submitted shall favor the same, the mayor and council of said city are hereby authorized to enact a proper ordinance providing for the issuance of bonds, which bonds shall run for not exceeding thirty years nor bear a greater rate of interest than six per cent. per annum, to be sold at par, payable semi-annually, and said bonds to be sold by the city and the proceeds thereof used for the payment of the award of commissioners. All bonds issued under the provisions of this act shall contain a recital that the same are issued under the provisions of this act and in conformity with its provisions, and such recital shall be conclusive in favor of all persons holding such bonds against the city and the taxpayers thereof that all conditions precedent and proceedings to authorize the issuing of such bonds have been made and had in conformity with this act. If the electors of the city vote bonds to raise money to pay the award fixed in the report of the commissioners, the city shall as soon as practicable thereafter pay the amount of the award to the county treasurer of the county in which the said city is located, and the right of possession to the property condemned shall thereupon vest absolutely in the city, and such city shall have the right to enter into and take possession thereof, and thereafter the said city shall hold the plant and property appropriated free from all liens and encumbrances.

'Sec. 8. If the city shall cause to be paid to the county treasurer of the county in which the city is located the amount in full of the award, such treasurer shall, upon demand of the persons severally entitled thereto, pay over the amounts of such fund to such persons as shall be respectively entitled thereto. Immediately upon the payment to the county treasurer of the amount of the award made by the commissioners any lien holder, mortgagee or holder of any encumbrance of the plant or property condemned shall have the right to commence an action in any court of general jurisdiction in the county in which said city is located, for the purpose of determining to whom the money so deposited shall be paid. In any such action service may be made by publication against defendants who are nonresidents of the state, in the same manner as is now provided for such service by the code of civil procedure of the state of Kansas in case of non-resident defendants.'

Thereafter the city of Kansas City, Kan. (hereinafter called the 'City'), by its mayor and common council, passed a resolution declaring it necessary and for the best interests of the city to avail itself of the power conferred to condemn and take over the property and plant of the Metropolitan Water Company (hereinafter called the 'Water Company') in the city, and...