Lester Real Estate Co. v. City of St. Louis

• Decision Date: 27 October 1902
• Citation: 170 Mo. 31,70 S.W. 151
• Parties: LESTER REAL ESTATE CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

70 S.W. 151

170 Mo. 31

LESTER REAL ESTATE CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

EMINENT DOMAIN—CONDEMNATION PROCEEDINGS —MUNICIPAL CORPORATIONS—DISMISSAL —ATTORNEY'S FEES.

1. Under St. Louis City Charter, art. 6, § 9, authorizing the city to dismiss and withdraw legal proceedings for condemnation of private property at any time before final judgment, on payment of costs, the city is not liable for attorney's fees alleged to have been necessarily expended in the defense of such a proceeding, which was dismissed by the city; there being no averment that the city needlessly, wrongfully, and vexatiously continued the proceeding, against the landowner's protest, when it had power to dismiss the same and avoid injury to him.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by the Lester Real Estate Company against the city of St. Louis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. Clarance Taussig, for appellant. B. Schnurmacher and Chas. W. Bates, for respondent.

BURGESS, J.

This action is to recover the sum of $3,000 from the city for fees of attorneys, alleged to have been necessarily expended by plaintiff in the defense of a proceeding brought by said defendant city in the circuit court of the city of St. Louis for the purpose of condemning plaintiff's real estate for widening a street, which said proceeding was dismissed by the city, and the costs adjudged against it. Defendant interposed a demurrer to the petition upon the ground that it failed to state a cause of action. The demurrer was sustained, and final judgment rendered for defendant thereon, from which plaintiff appeals.

Under its charter, the city of St. Louis (article 6, § 9) may dismiss and withdraw legal proceedings for the condemnation of private property for public use at any time before final judgment, on the payment of costs, and in this respect differs from such a proceeding by other public corporations authorized under their charters to condemn real estate for public use, and is only liable for counsel fees when it is alleged and made to appear that such proceedings "are needlessly, wrongfully, and vexatiously continued by the city, against the protest of the landowner, when it is in the power of the city to dismiss, and avoid the injury to him." There is no such averment in the petition in this case, or anything tantamount thereto. The demurrer was properly sustained. St. Louis Brewing...