Kansas City v. Morton

• Decision Date: 03 July 1893
• Parties: Kansas City et al. v. Morton, Appellant
• Court: Missouri Supreme Court

23 S.W. 127

117 Mo. 446

Kansas City et al. v. Morton, Appellant

Supreme Court of Missouri, First Division

July 3, 1893

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Reversed and remanded.

Brumback & Brumback for appellant.

(1) The court should not have allowed the questions, asked by the city, of witness Hyer to be asked or answered. He was not shown in any way to be qualified to express his opinion. Lewis on Eminent Domain, sec. 437; Railroad v Vance, 115 Pa. St. 325. (2) The same rule should be applied in assessing benefits on both the lands that are damaged and those that are not; and the court, therefore erred in giving instruction number 3 of its own motion, in connection with instructions numbered 1 and 2 asked by city and erred in refusing instruction number 5 asked by Annie Morton. Lewis on Eminent Domain, sec. 471, page 606, bottom, and all 607; Daugherty v. Brown, 91 Mo. 26; McReynolds v. Railroad, 34 Mo.App. 581; Cooley on Constitutional Limitations, star pages 569, 570 [5 Ed.], pages 703-705; Charter Kansas City, 1889, art. 8, sec. 7; State v. City of Kansas, 89 Mo. 34. (3) In this case Annie Morton should have recovered as her damages the reasonable cost of supporting her house and improvements, and making same conform to proposed grade, and the court erred in giving instructions 3 and 4 asked by city, and in refusing instruction number 3 asked by Annie Morton. 1 Sutherland on Damages, p. 148; Sedgwick on Damages [8 Ed.], sec. 220, 221, 932-939-947; Hartshorn v. Worcester, 113 Mass. 111; Flynt v. Railroad, 38 Mo.App. 94; Hartshorn v. Chaddock, 31 Northwestern Reporter (N. Y.), 997; Bridge Co. v. Schaubacher, 57 Mo. 582; Fisher v. Goebel, 40 Mo. 475; Wisdom v. Newberry, 30 Mo.App. 241; McCarthy v. St. Paul, 22 Minn. 527; Gregg v. Mayor, 56 Md. 256. (4) The court could only be justified in giving instruction number 2 of its own motion by the fact that it must have conclusively appeared from the evidence that the benefit district was unreasonable, and in that event the charter provides that the court shall at once declare the proceedings void. It was, therefore, error to refuse instruction number 6 asked by Annie Morton (p. 20 abstract), and to overrule her motion. Charter of Kansas City, 1889, art. 8, sec. 13; City of Kansas v. Baird, 98 Mo. 215. (5) The benefits to be assessed against property are only such special or peculiar benefits as enure directly to it. Those it shares in common with all other property in the city are not assessable against it. Rude v. St. Louis, 93 Mo. 409; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 93 Mo. 92.

Ashley & Gilbert, F. F. Rozzelle, F. H. Dexter and F. W. Randolph for respondents.

(1) It is not necessary that a witness should be an expert on values of real estate to render him competent to tell what he thinks of the effect of an improvement; but if he has any superior knowledge of the subject, though an ordinary and not an expert witness, he can express his opinion from general observation in such cases. Rice on Evidence, sec. 135 f; Lewis on Eminent Domain, sec. 437. (2) As damages are, by the terms of the charter, to be first considered and allowed before the benefits to the city and to private property are assessed, this court has no right to assume that the damages were lowered to equal the assessment of benefits, as appellant insinuates. (3) While ordinarily the question of determining what property shall be assessed with benefits may be in the exclusive province of the jury, yet there are cases where the facts are so clear and undisputed, and where the physical facts make the question so clear and indisputable, that it then becomes the duty of the court to declare the law that no benefits can be assessed against private property where the same can derive no possible benefit from a proposed improvement. Burroughs on Taxation, pp. 446-661; City of New Orleans, 20 La. Ann. 497; Rude v. St. Louis, 93 Mo. 409. (4) Where no part of a tract of private property touches a proposed public improvement and is so separated therefrom by intervening private property that no direct or immediate benefit thereto can result from such improvement, it cannot be assessed with benefits to pay for such improvement, notwithstanding a legislative declaration purporting to authorize the same to be done. Thomas v. Gain, 35 Mich. 155; Paulson v. Portland, 16 Oregon, 450; In Matter of Fourth Avenue, 3 Wend. 452; State ex rel. v. City Council, 12 Rich. (S. C.) 702; Taylor v. Palmer, 31 Cal. 241; State et al. v. City, 37 N. J. Law. 330; In Matter of Drainage of Land, 35 N. J. Law. 497; Hanscom v. City, 11 Neb. 37. (5) Under the decisions above cited, and the evidence, the court would have been obliged to set aside a verdict assessing lots not bordering on the proposed alley with benefits. Since reasonable minds could not honestly differ upon this question under the evidence, it was the prerogative and duty of the court to take the question from the jury. Field v. Railroad, 80 Mo. 206; Herrman v. Railroad, 27 Mo.App. 445; Walker v. City of Kansas, 99 Mo. 647; Carroll v. Railroad, 88 Mo. 248; State v. Moore, 101 Mo. 329; Rice v. McFarland, 41 Mo.App. 489; Bank v. Hatch, 98 Mo. 376.

Macfarlane J. Barclay, J., not sitting.

OPINION

Macfarlane, J.

-- This is a proceeding under the charter of Kansas City, for the assessment of damages and benefits to private property for the proposed grading of an alley lying between Wyandotte and Central streets and extending through the block from Ninth street to Tenth street, the length being two hundred and forty-seven feet.

The passage of an appropriate ordinance was effected and all preliminary steps were taken for the assessment of damages. Annie Morton owned lot number 6 in said block, which was twenty-four feet wide, lying on the west side of the alley, fronting south on Tenth street and extending along the alley one hundred and forty feet to an alley running east and west through the block. The heirs of James Morgan owned lot 7 lying along the east side of the alley fronting south and also running back to the east and west alley. These heirs also owned lot 8 lying east of said lot 7 its entire length. These owners duly filed their claims for damages, as did also some of the other owners abutting on the alley. Some made no claim for damages. Upon these claims for damages and for the assessment of benefits, the cause was tried by a jury.

The benefit district, as declared by the ordinance, included some lots which did not abut on the alley. The court excluded all evidence of benefits to these lots, holding that they could not be assessed, thereby cutting out from assessment a portion of the property within the established district. The claimants for damages insisted that this ruling rendered the whole proceedings void.

Annie Morton, who is the only appellant, offered evidence showing "that at the southwest corner of the alley, upon her lot, there stood a two-story brick residence costing about $ 9,000; that the east wall of the house, which is seventy feet long, built of brick and with a stone foundation, stood exactly on a line with the alley; that her lot was twenty-four feet wide and the house covered almost the entire width of the lot; that the alley had already been graded out some few feet, and that in the front and rear of her house were stone retaining walls running along the line of the alley; that on the rear of the lot and very close to the line of the alley were situated cisterns and vaults; that the walls of the house and the retaining walls now are built down below the present surface of the ground four or five feet, and that the cut proposed to be made made in the alley was six feet at the front of the house and fourteen feet at the rear.

She then offered evidence showing the expense that would be necessary in securing and protecting her property and the improvements thereon. This evidence tended to prove that such expense would be from $ 2,300 to $ 4,000.

There was other evidence offered and admitted tending to show that the property of the various other claimants was damaged, and that various lots abutting upon the alley in question in the benefit district were benefited by the proposed improvement in various sums, and other evidence tending to show that the lots not abutting on the alley would not be benefited in any way nor in any sum by the proposed improvement, and there was no evidence that tended in any way to show that these lots not abutting upon the alley in question would be in the least benefited by the proposed improvement."

Upon the evidence and instructions of the court, the jury assessed the damages of Annie Morton at $ 1,100, and from the judgment thereon she appealed.

I. The charter of the city (sec. 2, art. 8) requires that the ordinance that shall order grading or regrading of any street or alley, shall also prescribe and determine the limits within which private property is benefited by the proposed grading and regrading. Section 13 of the same article in providing for the proceedings for ascertaining the damages before the court or judge makes this provision in regard to the benefit district: "Provided, however, that should the court or judge, upon evidence, find that the benefit district prescribed by the common council is unreasonable, it or he can so declare and cause an entry of such finding to be placed on record in the cause; and such finding shall cause all the proceedings had under such ordinance to be null and void; and an appeal from such finding of the court or judge may be taken in the same manner as in any ordinary civil case. The inquiry as to the reasonableness or unreasonableness of the ordinance in the matter mentioned may be heard and determined by the court or...