Meadow Park Land Co. v. School Dist. of Kansas City

• Decision Date: 31 December 1923
• Docket Number: No. 23584.,23584.
• Citation: 301 Mo. 688,257 S.W. 441
• Parties: MEADOW PARK LAND CO. v. SCHOOL DIST. OF KANSAS CITY.
• Court: Missouri Supreme Court

257 S.W. 441

301 Mo. 688

MEADOW PARK LAND CO. v. SCHOOL DIST. OF KANSAS CITY.

No. 23584.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

Action by the Meadow Park Land Company against the School District of Kansas City. Judgment for defendant, and plaintiff appeals. Affirmed.

Scarritt, Jones, Seddon & North, of Kansas City, for appellant.

McCune, Caldwell & Downing, of Kansas City, for respondent.

LINDSAY, C.

The essential issue in this case is sharply definable. The question is whether the school district of Kansas City, which instituted a proceeding to condemn land of the appellant for school purposes, and, after prosecuting that proceeding for several months, dismissed it, is liable for the attorney's fees and other attendant expenses incurred by appellant in its defense in that proceeding.

The appellant sued for the sum of $0,101.66, the amount which it had paid out, or had become legally liable to pay by reason of the institution of the proceeding to condemn, and set forth a schedule of the items thereof. The school district filed a general demurrer to the petition, which was sustained by the trial court. Appellant stood upon its petition, and, from the resultant judgment, the case is here on appeal. The petition is long, but need not be set forth; nor is extensive reference to the facts therein stated necessary, and only so much will be attempted as suffices to make plain the nature of the question to be decided, and the circumstances under which it arose.

The appellant is an incorporated company and the original owner of a large number of lots constituting a platted addition to Kansas City, known as Meadow Park addition, comprising a tract of about 80 acres. The addition was established with the purpose, the petition states, of making it "a comfortable, agreeable, and first class residential district," and in the conveyances made by the company to purchasers of lots certain restrictive covenants and agreements were imposed upon the grantees and their assigns as to the character of building and occupancy permitted. These covenants may be found fully set forth in the opinion of this court in Peters v. Buckner, 288 Mo. 618, 232 S. W. 1024, 17 A. L. R. 543.

On the 11th day of December, 1020, the school district instituted its suit in the circuit court to condemn blocks 3 and 4 of this addition, owned by appellant, as a site for a public schoolhouse. The suit was against appellant and against all other owners of lots in said addition, and the object sought was to condemn the site, and also to condemn the rights or easements of appellant and of all other owners of lots arising out of the aforesaid restrictive covenants. The condemnation proceeding advanced to the appointment by the circuit court of commissioners to assess the damages. Then and therein arose a controversy between appellant and other lot owners on the one side, and the school district and the circuit court on the other, as to whether the rights or easements arising out of the aforesaid covenants should be considered in assessing damages. That phase of the controversy was settled in the original proceedings instituted in this court by appellant and others in Peters v. Buckner, supra. Thereafter the condemnation proceedings were resumed in the circuit court. It is alleged in the petition that the commissioners, instructed as to the law in accordance with the ruling of this court in the Peters Case, had agreed among themselves as to the amount of damages to be allowed to each property owner, amounting in the aggregate to a much larger sum than was anticipated by the board of directors of the school district ; that, pending preparation of the report thereof, certain members of said board of directors interfered, and procured other persons to do so, by protests, so that said commissioners were embarrassed, and made no report, and were discharged by the court; and thereafter, on December 21, 1921, said school district through its counsel, without notice to appellant, dismissed said condemnation proceeding. The petition alleges that appellant has estimated and claimed the sum of $160,000 as the value of the property rights which were sought to be appropriated, and states, upon information and belief, that said commissioners, if not interfered with, would have reported and allowed to plaintiff the sum of $100,000 as damages. The total amount demanded by appellant in this action is made up of the sum of $8,000, for services of its attorneys in the condemnation proceeding and in prosecuting the mandamus suit in this court; $127.66, for traveling and other expenses incurred in the mandamus suit; $900, for the time and services of the executive officers of appellant company; and $35, for plats and blueprints used in the condemnation proceeding.

In the state of the pleadings the question here is whether the school district is liable to appellant at all. The school district of Kansas City is organized and exists under the provisions of article 15 of chapter 102, R. S. 1919, governing districts in cities of 75,000 and less than 100,000 inhabitants. Under section 11403 of that article the school district is a body corporate, and may sue and be sued. The condemnation proceeding was undertaken under authority of section 11428, wherein it is provided that if a desired site for school purposes is not purchasable through failure to agree on the price, or otherwise—

"The board may, in the name of the district, proceed to condemn the same in the same manner as provided for condemnation of right of way in article II of chapter 13 of the Revised Statutes."

Said article 2 contains the provisions governing condemnation proceedings by railroad telegraph, and other corporations therein mentioned. There are numerous decisions of the appellate courts of this state, beginning at an early time, dealing with the right of corporations, after instituting such a proceeding to discontinue the same, and with the question of their liability to the property owner who has incurred expense or loss by reason thereof. The liability of a railroad company under these conditions has been sustained in the following cases: North Missouri R. R. Co. v. Lackland, 25 Mo. 515; Railroad v. Reynal, 25 Mo. 534; Leisse v. St. Louis, I. M. & S. R. R. Co., 2 Mo. App. 105, 5 Mo. App. 585, 72 Mo. 561; Sterrett v. Railroad, 108 Mo. App. 650, 84 S. W. 150; Kirn v. Railroad, 124 Mo. App. 271, 101 S. W. 673; St. Louis Ry. Co. v. Southern Ry. Co., 138 Mo. 591, 39 S. W. 471; Gibbons v. Mo. Pac. Ry. Co., 40 Mo. App. 146; St. Louis & Gulf Ry. v. Cape Girardeau Co., 126 Mo. App. 272, 102 S. W. 1042.

In the early cases mentioned, the right to discontinue the proceeding was a question in issue. It was held that the right existed and in the later decisions the only question is as to whether terms may be imposed, or of liability beyond payment of costs. The right is recognized by the general condemnation statute. Sections 1793 and 1796, R. S. 1919. Under section 1793 it is provided that the costs, up to and including the filing and copying of the report of the commissioners, are to be paid by the applicant for condemnation, and costs of subsequent litigation are to be paid as the court in its discretion may deem just. This provision has reference to costs proper, those fixed by law, and has no reference to expenses incurred by the property owner for fees paid out to counsel, or other like expenses incurred in making his defense. City of St. Louis v. Meintz, 107 Mo. 611, 18 S. W. 30. In that case there was a provision of the charter of the city concerning costs, similar to the statute above mentioned. The case decides little more than that counsel fees are not costs in a condemnation proceeding.

There are cases wherein it was held or said that a municipal corporation, upon abandonment of a condemnation proceeding, became liable to the property owner for expenses so incurred. City of St. Joseph v. Hamilton, 43 Mo. 282; Owen v. City of Springfield, 83 Mo. App. 557. In St. Joseph v. Hamilton, the question was not involved. At page 288 of 43 Mo., it was said:

"I have no doubt that the city may dismiss its proceedings at any time before final judgment in the circuit court; and then the only liability that would be incurred would be the expenses."

But this was clearly outside of the issues before the court.

In Simpson v. Kansas City, 111 Mo. 237, 20 S. W. 38, the plaintiff sued the city for damages sustained and trouble and expense incurred in defending against a condemnation proceeding which the city abandoned. The gravamen of plaintiff's charge was that the proceeding was wrongfully and vexatiously prolonged to the interference of plaintiff in the use and enjoyment of his property and to his great expense. The proceeding was pending for a period of 9 years. The court discussed the general question involved at some length, and in an instructive manner, and reviewed the prior decisions in certain other states as well. In that case, as in this, a demurrer to plaintiff's petition had been sustained. The court stated its ultimate conclusion, and the grounds of it, as follows (111 Mo. loc. cit. 248, 20 S. W. loc. cit. 40):

"We think that unless defendant can show that this long delay was unavoidable, and that reasonable diligence was used in the prosecution of the proceedings in the appellate court, then plaintiffs should receive compensation for their damages. We think the long, unexplained and wrongful delay charged, and the final dismissal of the proceedings, with the alleged injuries, make a prima facie case, and the demurrer should have been overruled."

On the road to the conclusion so stated the court passed upon certain matters which are pertinent in this inquiry. There was a provision of the charter of the city, the effect of which was to give the city 60 days, after the making of the report of assessment of...