Leslie v. City of St. Louis

• Decision Date: 31 March 1871
• Citation: 47 Mo. 474
• Parties: EDWIN G. LESLIE, Appellant, v. THE CITY OF ST. LOUIS AND FRANCIS ROMER, Respondents.
• Court: Missouri Supreme Court

47 Mo. 474

EDWIN G. LESLIE, Appellant,

v.THE CITY OF ST. LOUIS AND FRANCIS ROMER, Respondents.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Shepley, Denison and Allen, for appellant.

I. This case comes within the equitable jurisdiction of the court, and the appellant is entitled to equitable relief. The threatened sale, though void, being under color of legal proceedings, would cast a cloud upon appellant's title to the land, and the courts will interfere to prevent it. (Lockwood v. City of St. Louis, 24 Mo. 20; Fowler v. City of St. Joseph, 37 Mo. 240; Pease v. City of Chicago, 21 Ill. 500; Uhrig v. The City of St. Louis, 44 Mo. 458.)

II. Statutes creating corporations, and authorizing them to divest the title to real property by proceedings in invitum, should be strictly construed. (Lind v. Clemens, 44 Mo. 540; Reitenbaugh v. Chester Valley R.R. Co., 21 Penn. 100; Vail v. Morris R.R. Co., 1 Zabr. 189; Fowler v. City of St. Joseph, 37 Mo. 238; Sedgw. Stat. and Const. Law, 338 et seq.;1 Dutch. 309.)

III. The appellant has a right to object to all irregularities in the manner of exercising the power of eminent domain, because he is sought to be charged with payment of assessed benefit, and his burden has been thereby increased. (In the matter of 39th st., 1 Hill, N. Y., 191; Gilbert v. Columbia Turnpike Co., 3 Johns, 107; Dyckman v. The Mayor of New York, 5 N.Y. 434.)

IV. An effort to make an agreement with the owners of the land to be taken for public use, satisfactory to the city council, is a condition precedent to the right of the city to condemn the property, or of the land commissioner to commence these proceedings. (Sess. Acts 1867, pp. 72, 73, art. VIII, §§ 3, 4, 5; Lind v. Clemens, 44 Mo. 540; Reitenbaugh v. Chester Valley R.R. Co., supra; 1 Zabr. 189; 3 Johns. 107; 5 N. Y. 434; 7 Barb. 498; Abb. Dig. 317, §§ 26-8.)

V. The proceedings must affirmatively show that this precedent condition has been complied with, and no presumption is to be indulged in. (Lind v. Clemens, supra.)

Reber, City Counselor, for respondents.

I. This being an injunction bill, the plaintiff must affirmatively show that the law was not complied with, to his detriment; and it is not sufficient to aver that the verdict does not show certain facts, unless by law those facts must appear in the verdict.

II. The ordinance authorizing the judgment on the verdict is warranted by the statute. (Sess. Acts 1867, p. 72, art. VIII, § 2.) And if not, then the verdict must stand as a judgment or assessment, on which execution or warrant may issue. It would be strange if an assessment could be made and yet could not be collected.

III. There was in this case no necessity of making or attempting to make an agreement with the owners of land before proceeding to condemn. The word can in the act must be read shall.

IV. If the plaintiff has any remedy it is by law--by certiorari or trespass.

WAGNER, Judge, delivered the opinion of the court.

The appellant's bill prayed for an injunction to restrain the city of St. Louis from selling certain real estate which had been assessed for benefits upon a pretended condemnation before the land commissioner. A demurrer being interposed and sustained by the court, the allegations in the petition must be taken as confessed. But it is not deemed necessary to examine all the charges, as the two leading questions are decisive. These are; first, whether, before instituting proceedings for the condemnation of the property, it was necessary that an attempt should be made with the owner to effect an agreement in reference thereto; and second, whether injunction in the present case is the appropriate remedy.

The city charter declares that whenever the city council shall provide by ordinance for the establishing, opening, widening or altering any street, avenue, alley, wharf or public square, or route for sewer, and it becomes necessary for that purpose to take private property, and no agreement can be made with the owner or owners thereof, to the satisfaction of the city council, just compensation shall be paid therefor, to the person or persons whose property is so taken, which the land commissioner shall cause to be ascertained by a jury of six disinterested freeholders of the city, etc. (Sess. Acts 1867, p. 72, § 2.)

As no effort was ever made to agree upon any terms with the appellant, who owned the property, and the land commissioner proceeded in total disregard of this provision, we must determine whether it is merely directory or whether it is imperative and constitutes a condition precedent to the exercising the right of eminent domain by the city.

Perhaps no principle has been oftener proclaimed by the courts, or is more firmly established in the very ground-work of the law, than that whenever, in pursuance of authority, the property of an individual is to be divested against his will, there must be a strict compliance with all the provisions of the act authorizing such a proceeding.

The power to take private property for public use without the consent of the owner is in derogation of the rights of the citizen, and can only be justified on grounds of absolute necessity; and, when exercised, the power conferring the right must be strictly adhered to and complied with. It is no answer to say that certain things in a given enactment, conferring the authority, do not appear to be essential. Everything is essential which the law has said should be done before this high prerogative right can be carried out and enforced.

Where the law relating to roads in St. Louis county authorized the seizure of material belonging to...