Kansas City v. St. Louis & S. F. R. Co.

• Decision Date: 21 June 1910
• Citation: 130 S.W. 273,230 Mo. 369
• Court: Missouri Supreme Court
• Parties: KANSAS CITY v. ST. LOUIS & S. F. R. CO. et al.

130 S.W. 273

230 Mo. 369

KANSAS CITY v. ST. LOUIS & S. F. R. CO. et al.

Supreme Court of Missouri.

June 21, 1910.

Rehearing Denied July 20, 1910.

MUNICIPAL CORPORATIONS (§ 441) — ASSESSMENT OF BENEFITS — CONSTRUCTION OF PART OF CONTEMPLATED IMPROVEMENT.

A city will not be permitted to assess benefits for a public improvement, where the improvement in immediate contemplation is but a part of a larger plan not yet adopted, and which, unless the entire plan is carried out, will result in damage, rather than benefit; and the mere fact that an ordinance has been passed covering the rest of the improvement will not support the assessment, where the ordinance has not been acted upon, and the evidence shows that the city is at present unable to carry it into execution.

Woodson, J., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by the City of Kansas City against the St. Louis & San Francisco Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and remanded with directions.

Dana, Cowherd & Ingraham, M. A. Lowe, Sebree, Conrad & Wendorff, John H. Lucas, and Samuel W. Sawyer, for appellants. John G. Park, City Counselor, for respondent.

VALLIANT, J.

This is a proceeding instituted by Kansas City to assess the damages and benefits incident to the changing of the grade of Twelfth street from Broadway west to a point 270 feet west of Summit street. The proceeding arose out of the following state of facts, as we gather them from the statement of the case in the brief for the respondent:

In the western part of the city, south of the Missouri, lies a considerable tract which is called the "West Bottoms." In the Bottoms are the tracks of many railroads, freight houses, and a Union Station, besides many business houses of various kinds. The general lay of the land is north and south. Twelfth street runs east and west, crossing the Bottoms at or about right angles. It is one of the principal thoroughfares of the city. On the east side of the Bottoms a steep bluff rises. Coming from the east on Twelfth street, the traffic ends when it comes to the bluff, except traffic by street railway, which is carried on a viaduct from that point across or over the Bottoms. The viaduct was constructed by the street railway company, and is not available or suitable for any other than street railway travel. Twelfth street, from Broadway to the point mentioned 270 feet west of Summit street, crosses four streets, Washington, Pennsylvania, Jefferson, and Summit. From the brow of the bluff going east the grade of Twelfth street rises, varying from 6 to 9 per cent., until Washington street is reached; then it falls to Broadway. The change in the grade of Twelfth street required by the city ordinance will cause a cut from 16 to 18 feet deep at Washington street, and the depth thence to the objective point will vary according to the natural grade, to bring the street on a level with Broadway. When the street is cut down to that grade, there will still be an abrupt bluff about 8 feet high. On the other side of the Bottoms, from Santa Fé street to Liberty street, a distance of three blocks, Twelfth street is only 30 feet wide, having three shallow blocks abutting it on the north. These blocks are only 30 feet deep. They separate Twelfth street from Eleventh street, which latter street is 70 feet wide. These three shallow blocks, condemned and out of the way, would, by uniting Eleventh and Twelfth streets, make a street 130 feet wide. This topographical condition has created an impediment in the way of travel to and from and across the Bottoms, which the city officials have for a long time desired to remove, and to accomplish that purpose they have (we are still drawing from the statement in respondent's brief) decided on this plan, viz.: The grade of Twelfth street is to be altered as above indicated, the three shallow blocks lying between Santa Fé and Liberty streets and Eleventh and Twelfth streets are to be condemned and taken out of the way, and a viaduct is to be constructed at the city's expense — perhaps two viaducts, one to carry the heavy, the other the lighter, traffic — across the Bottoms from the brow of the bluff on the east to Liberty street on the west on the grade of Twelfth street as it will be established in this proceeding.

At the trial it was shown in evidence by the city that an ordinance had been duly passed to condemn the three blocks above mentioned, and proceedings were then pending to assess the damages and benefits incident to the condemning of the same, and that suit was pending in the same division of the circuit court as that in which this suit was being tried; and the record in this case shows that this judgment was held in the breast of the court until the other case was prosecuted to judgment, the court holding that one should not go into judgment for the city until the other also so resulted. Judgment was rendered in favor of the city in both cases, appeals taken in both, and both are now before this court and submitted together. It appears from the record in both these cases that the benefit district in one is the same as in the other. But, in so far as the general plan involved the construction of the viaduct, the only evidence offered to prove it was the oral evidence of witnesses, who stated that the plan had been thoroughly discussed by the city officials, and they had decided that it should be done. There had been no plans of the viaduct drawn, no details as to its width or capacity, no specifications of material, and no determination as to when it should be built. The gap to be filled by the viaduct is over 3,000 feet in width. The evidence showed, and it was practically admitted, that unless this gap was spanned by a viaduct neither the grading of Twelfth street as proposed nor the condemning of the three blocks on the west side would reflect the least benefit on the property included in the benefit district, nor anything but damage to the property abutting Twelfth street. The evidence in behalf of the city as to the proposed viaduct was to the effect that the reason no ordinance was adopted providing for the construction of the viaduct was that it would be contrary to the city charter to pass such an ordinance until the money was in the city treasury to pay for the structure, and there was no money then available for that purpose. In the oral argument before this court it was said that a proposition to...