Kansas City v. Webb, 35677

• Decision Date: 09 August 1968
• Docket Number: No. 35677,P,35677
• Citation: 484 S.W.2d 817
• Parties: , 1 Envtl. L. Rep. 20,404 In re Condemning Private Property for Public Use for Sewer and Water Rights in Kansas City, Missouri and Providing for Payment of Just Compensation Therefor, Under Ordinanceassed
• Court: Missouri Supreme Court

Page 817

484 S.W.2d 817

2 ERC 1737, 1 Envtl. L. Rep. 20,404

In re Condemning Private Property for Public Use for Sewer

and Water Rights in Kansas City, Missouri and Providing for

Payment of Just Compensation Therefor, Under Ordinance No.

35677, Passed August 9, 1968.

KANSAS CITY, Condemnor-Respondent, v. Claude G. WEBB and Coga Webb, et al., Condemnees-Appellants.

Nos. 55230, 55432.

Supreme Court of Missouri, En Banc.

March 13, 1972.

Certiorari Denied Oct. 10, 1972. See 93 S.Ct. 62.

Aaron A. Wilson, City Counselor, Ned B. Bahr, Assoc. City Counselor, Kansas City, for respondent Kansas City, a Missouri Municipality, Condemnor herein.

William K. Poindexter, Kansas City, Phillip L. Baker, Jack C. Terry, Independence, for appellants.

HOUSER, Commissioner.

This is a condemnation proceeding commenced by the City of Kansas City, a constitutional charter city, by the filing in the office of the Circuit Clerk of Jackson County of its Ordinance No. 35677 condemning private property for public use for permanent sewer and water rights of way and temporary construction easements in connection with Pollution Control Project White Oak Pump Station and Force Main; providing for payment of compensation under Article VI of the Charter of Kansas City and for institution and prosecution of the proceedings under said Article VI, or under RSMo 1959, Chapter 523, as amended, as supplemented by Supreme Court Rule 86, 'or by any other method authorized by law for the determination of the payment of just compensation'; authorizing the city counselor to select the procedural method for such acquisition; providing that the landowners were to be conclusively bound by his selection; for payment of compensation from city funds, and that the improvements were to be available to serve the landowners within the limits of the watershed and giving them the right to make sewer connections therewith, the council determining that said lands were specially benefited by availability of the permanent sewer easements. Notice was published. Landowner Bertha Bell filed a petition alleging that she was entitled under the law of the land to a trial of her claims for compensation by a common law jury of twelve men, and demanded same. The circuit judge overruled her petition, whereupon Bertha Bell and landowners Webb and Brightwell filed answers denying that the proposed use is a public use; alleging that it is a private use of benefit to private land developers; that the city charter provisions for condemnation deny them equal protection of the laws as provided for in the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the state constitution, by authorizing compensation to be ascertained and assessed by a jury of six freeholders of the city at the election of the city while at the same time providing in Section 147 of the charter that if any incorporated companies subject to the same condemnation proceedings be entitled under the law of the land to trial of its claims for compensation by a common law jury of twelve persons it may demand and have such a trial; that no such protection is afforded individual condemnees. Landowners further alleged that the condemnation violates their constitutional rights under the Fifth and Seventh Amendments, and deprives them of property without due process of law under the Fourteenth Amendment. They sought dismissal of the action, praying in the alternative for damages for $9,934.08 (Bell); and $9,426.25 (Webb and Brightwell).

The circuit judge selected six resident freeholders of the city who were sworn in and empaneled as a jury. The freeholders' jury rendered a verdict ascertaining that the Webbs and Brightwells had sustained no actual damages and awarding $200 for damages done to the Bell property over and above any special benefits accruing. The court accepted the verdict, allowed each of the six jurors a fee of $450 (three days each at $150 per day), a total of $2,700, and discharged the jury. The Webbs and Brightwells and Bertha Bell filed timely motions for new trial. The court, sitting without a jury, heard extensive oral evidence and considered 70 exhibits introduced on the issue of public or private use. The court made findings of fact and conclusions of law, overruled landowners' motions for new trial, found the taking was for a public and not a private use, upheld and sustained the constitutionality of the ordinance and procedure, confirmed the verdict of the jury, and ordered title in the easements vested in the city. Landowners appealed.

Landowners specifically and timely raised the constitutional question at the inception of these proceedings, preserved the same in the trial court, and have kept it alive on this appeal, whether in denying their demand for trial before a common law jury of twelve persons (a right afforded corporate condemnees in like circumstances) landowners were denied their right to equal protection of the laws under Amendment XIV to the Constitution of the United States and the equal rights and opportunity accorded them under § 2 of Article I of the Constitution of Missouri, 1945.

The following constitutional, statutory and charter provisions are pertinent:

'No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.' Amendment XIV, Constitution of the United States.

'* * * (A)ll persons are created equal and are entitled to equal rights and opportunity under the law; * * *.' Article I, Section 2, Constitution of Missouri, 1945.

'* * * (P)rivate property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; * * *.' Article I, Section 26, Constitution of Missouri, 1945.

'The exercise of the power and right of eminent domain shall never be construed or abridged to prevent the taking by law of the property and franchises of corporations and subjecting them to public use. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when the rights of any corporation are affected by any exercise of said power of eminent domain.' Article XI, Section 4, Constitution of Missouri, 1945.

'Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party file exceptions to the award of commissioners in any condemnation case.' § 523.060, RSMo 1959 (Laws Mo.1945, p. 1072).

'Whenever the charter of any constitutional charter city makes provision for the condemnation of property for public purposes and assessment of benefits therefor, such city may elect to proceed with such condemnation or assessment, or both, in the manner provided in sections 88.010 to 88.070 or to proceed in the manner provided in its charter.' § 88.073(2), RSMo 1959 (§ 7240 RS 1939, as amended in 1949 by H.B. 2036, effective April 14, 1950).

'* * * Subject only to the necessary extent of the limitations imposed by the constitutions and laws of the United States and the State of Missouri, it (Kansas City) shall have power: * * * (9) To exercise the right of eminent domain and to condemn property, real or personal, or any right, interest, easement, restriction or use therein, within or without the city or state for any public or municipal use or purpose.' Kansas City Charter, Article I, § 1.

'The city may exercise the power of eminent domain and the power of determining the damage caused to property by any public work or improvement or use, or restriction of use, and the power of making and levying special assessments, in the manner prescribed in this charter, or in any other lawful manner. And whenever any property, land, easement, right-of-way, use or right of any character is taken or damaged by the city for public use, just compensation shall be paid to the owner or owners thereof. Such compensation shall be ascertained and assessed by a jury of six (6) freeholders of the city, in the manner provided in this charter, or as otherwise provided by law. * * *' Kansas City Charter, Article VI, § 128.

'Upon the day fixed by the order and notice for the empaneling of a jury, or upon any day thereafter to which the proceedings in said cause have been continued or adjourned, the court shall empanel a jury of six (6) disinterested freeholders of the city, who shall receive the same compensation as other jurors in such court. * * *' Kansas City Charter, Article VI, § 142.

'At the hearing of said cause the parties interested may submit evidence to said jury of freeholders (provided for in section 142) touching the matters under consideration. Such jury may examine personally each piece of property described on the map or plat filed in said cause as aforesaid, and all property claimed to be damaged, and the property, if any, to be assessed with benefits; and the city engineer, the director of public works, or the superintendent of parks, or any assistant of any of them, may accompany such jury for the purpose of pointing out the property aforesaid.' Kansas City Charter, Article VI, § 144.

'If any incorporated company which may be interested in the whole or in any part of the land to be taken or damaged by the said proceedings, be entitled, under the law of the land, to trial of its claims for compensation therefor by a common law jury of twelve (12) men, it may at any time prior to the day fixed as herein provided for empaneling a jury, file in the office of the clerk of said court, a petition in which it shall state the description of the property owned or claimed by it so to be taken or damaged and the amount and nature of its claim therefor, and may further state that it demands trial before a common law jury of twelve (12) men of its claim for compensation therefor. If any such incorporated company shall not so file such petition before such date, it shall be deemed and taken to have waived...