Kansas City v. St. Louis & Kansas City Land Co.

Citation169 S.W. 62,260 Mo. 395
Decision Date02 July 1914
Docket NumberNo. 18080.,18080.
PartiesKANSAS CITY v. ST. LOUIS & KANSAS CITY LAND CO. et al.
CourtUnited States State Supreme Court of Missouri

Condemnation proceedings by Kansas City against St. Louis & Kansas City Land Company and others. From the judgment, defendants appeal. Affirmed.

White & Lyons, Warner, Dean, McLeod & Langworthy, Sebree, Conrad & Wendorff, Ball & Ryland, Kenneth McC. De Weese, Watson, Watson & Alford, Cowherd, Ingraham, Durham & Morse, and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for appellants. A. F. Evans, City Counselor, of Kansas City (Jay M. Lee and J. C. Petherbridge, Asst. City Counselors, both of Kansas City), for respondent.

LAMM, C. J.

This is an appeal by corporate owners of property in Kansas City whose parcels were assessed to pay benefits to meet an award of damages to other persons whose property was taken or damaged in a proceeding to widen a street. Kansas City in 1909 undertook to open and widen Sixth street from the east line of Bluff to the west line of Broadway by condemning 40 feet of private property on the south side of the street; Sixth street leading from the bottoms up town and being the main traveled thoroughfare for heavy hauling between the two. The authority for this proceeding was ordinance No. 3209, and, as there are several ordinances in the record, we will call this the "original ordinance" passim. Under this original ordinance and in supposed compliance with charter provisions (article 6, 1908), condemnation proceedings were instituted in a court known as the "municipal court," and ripened into judgment whereby damages were awarded for the land taken in the rise of $166,000, and the same amount was assessed against the city and over 13,000 different tracts owned by individuals and corporations, lying within a benefit district prescribed by said original ordinance. No appeal from this judgment was taken either by any landowner whose property was condemned nor by any landowner whose property was assessed with benefits. On that judgment the city collected of those benefit assessments the rise of $89,000 to pay said award of damages. Presently, and with matters in this fix, a certain railroad company, the Union Pacific, discovered the service on owners whose parcels were subject to assessment of benefits was defective, and brought its suit in equity in the circuit court of Jackson county against Kansas City and its officers, among them one Flynn. The life of the bill was injunctive relief in its favor (as an owner of property within the benefit district and which was assessed with benefits) against such assessment of benefits in the condemnation judgment under the original ordinance. Other parties in like fix (say, two or three) intervened. As there are several suits mentioned in this record, we will call this the "Flynn suit" to identify it. The Flynn suit ripened into a decree in favor of plaintiffs and interveners. It is sufficient to say of the Flynn suit that the condemnation judgment under the original ordinance was not assailed for lack of jurisdiction in the municipal court to hear any condemnation proceedings and assess any benefits to pay damages awarded therein (a newly discovered theory, now pressed), but, in substance, that case proceeded on the theory that plaintiff had no notice of the proceeding, and hence the judgment as to it was void. The chancellor found a lack of notice and process (the order of publication required by the charter was not published a sufficient time), and that the several assessments made against plaintiff's and interveners' properties were void because of such lack of service. Hence the municipal court had acquired no jurisdiction of them. The scope and object of the decree in the Flynn Case are indicated by the following excerpt:

"It is therefore considered, ordered, adjudged, and decreed by the court that said assessments, in so far as they effect (sic) or purport to effect (sic) plaintiffs or any of them or any of their several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; the defendant, Kansas City, M. A. Flynn, city clerk, U. L. Weary, clerk of said municipal court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying, or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover from the defendant, Kansas City, the costs herein expended and have execution therefor."

Neither side took an appeal from the Flynn decree, and it remained operative as a perpetual injunction against collecting such unpaid assessments.

With things in this fix, it seems that Kansas City attempted to repeal the original ordinance presumably for the purpose of abandoning the proceeding and returning to those paying assessments the amounts so paid. But the city was reckoning without its host; for, pending such repeal measure, another injunction suit was brought in the Jackson circuit court; this time against the city and in favor of those property owners whose lands had been condemned under the original ordinance and who had been awarded damages, to wit, one Tuller and others. These new suitors—Tuller and others—took the position in their bill that on recognized equitable principles the city, under its charter, could not repeal the original ordinance and abandon such condemnation proceedings so far as those persons were concerned whose property had been taken or damaged and to whom damages had been awarded by the judgment, where (as here) benefits had been assessed and in part paid, and where (as here) such property owners had appeared, tried out the issue as to them, and recovered their damages, and where (as here) the judgment was not appealed from. We will call this case the ...

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18 cases
  • Osage Land Co. v. Kansas City, 39235.
    • United States
    • Missouri Supreme Court
    • April 2, 1945
    ... ... 1 Bouvier Law Dict., pp. 680 et seq. Ed. 1897; Sec. 4, Art. II, Mo. Const.; Sec. 3228, R.S. 1939; Webster v. Kansas City So. Ry., 116 Mo. 114; Martin v. St. Louis, 139 Mo. 246; Plum v. Kansas City, 101 Mo. 525; St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 S.W. (2d) 1180. (2) Private property shall not be taken for public use without just compensation first paid therefor 5th Amendment Const. U.S.; Secs. 4 and 21, Art. II, Mo. Const.; Kansas City v. Ward, ... ...
  • Gary Realty Co. v. Swinney
    • United States
    • Missouri Supreme Court
    • December 30, 1924
    ... ...         Frank M. Lowe, of Kansas City, for appellant ...         Cooper ... 2 Lewis-Souther-land on Statutory Construction (2d Ed.) 986. The ... loc. cit. 11. 82 S. W. 187; K. C. v. St. Louis Land Co., ... 269 S.W. 970 ... 260 Mo. 395, ... ...
  • In re Proceeding to Restrict use of Property Along Gladstone Boulevard
    • United States
    • Missouri Supreme Court
    • May 22, 1923
    ... ... AND TO CONDEMN CERTAIN RIGHTS THEREIN; KANSAS CITY, Appellant, v. FRED LIEBI et al Supreme ... St. Louis ... Gunning Co. v. St. Louis, 235 Mo. 99; State ... Co., 188 Mass. 348; ... Kansas City v. Land Co., 260 Mo. 395; Kansas ... City v. Terminal ... ...
  • Osage Land Co. v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 2, 1945
    ... ... control, right to lease, mortgage, sell and enjoy its ... property. 1 Bouvier Law Dict., pp. 680 et seq. Ed. 1897; Sec ... 4, Art. II, Mo. Const.; Sec. 3228, R.S. 1939; Webster v ... Kansas City So. Ry., 116 Mo. 114; Martin v. St ... Louis, 139 Mo. 246; Plum v. Kansas City, 101 Mo. 525; ... St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 ... S.W.2d 1180. (2) Private property shall not be taken for ... public use without just compensation first paid therefor. 5th ... Amendment Const. U.S.; Secs. 4 and 21, Art. II, Mo. Const.; ... ...
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