Plum v. The City of Kansas

• Decision Date: 17 November 1890
• Citation: 14 S.W. 657,101 Mo. 525
• Parties: Plum, Appellant, v. The City of Kansas
• Court: Missouri Supreme Court

14 S.W. 657

101 Mo. 525

Plum, Appellant, v. The City of Kansas

Supreme Court of Missouri

November 17, 1890

October, 1890

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

This is an action to enjoin the city of Kansas from taking possession of a parcel of land, regularly condemned for public use as a street, until the payment of proper compensation therefor.

The city of Kansas passed an ordinance to extend Independence avenue, October 3, 1882. Proceedings were begun under it to acquire the land of plaintiff, as well as of others, for public purposes as part of that thoroughfare. In due course a verdict of the mayor's jury, in those proceedings directed by the charter (Sess. Acts, 1875, p. 244, art. 7) was confirmed by the common council of that city in an ordinance of December 30, 1882, assessing the amount of compensation for plaintiff's said property at thirteen thousand, two hundred dollars.

Plaintiff did not appeal or take any steps to vacate this assessment but other parties to the proceedings appealed to the circuit court, and afterwards to the supreme court, whereby a long delay ensued, during which the city did not take actual possession of the property. Ultimately the judgment of condemnation was affirmed. The municipal authorities then tendered plaintiff for his land the amount of damages awarded as already stated with a small additional sum ($ 223.80) which was the plaintiff's proportionate share of all the interest collected on the total "benefits" assessed against the adjacent property in the proceedings mentioned. This additional sum was tendered pursuant to a provision of the city charter to the effect that interest collected upon delayed payments of "benefits" should be apportioned and paid equitably to the owners of the property taken.

Plaintiff insists that the award of damages in his favor bears interest from the date of judgment of condemnation, and that, until the amount thereof is either paid or tendered, the city cannot lawfully take possession of the property in question condemned for public use. The city denies that contention. The facts of the case are not disputed. The controversy is merely as to the proper legal conclusion from those facts. The trial court found for the defendant, and entered judgment to that effect.

The plaintiff after the proper motions and exceptions appealed. All other material facts appear in the opinion.

Reversed and remanded.

John W. Wofford for appellant.

(1) The proposition of appellant is, that from the time the city took his property by its proceedings in court, and the approval of the same by the council, up to the payment of appellant by the city for it, that the city is liable to appellant for interest on its assessed value, to-wit, thirteen thousand and two hundred dollars, that is from December, 1882, to May, 1887, when payment was made. City Charter, sec. 5, art. 7; Session Laws, 1875; H. B. v. Co. Com'rs, 103 Mass. 120; Bill of Rights, Const. of Mo., sec. 21; Mills, Em. Domain [2 Ed.] secs. 175, 176, 177; Parks v. Boston, 15 Pick. 198; Old Colony v. Miller, 125 Mass. 1; Edwards v. Boston, 108 Mass. 535; Boston & R. M. Corp. v. Newman, 12 Pick. 467; Leisse v. Railroad, 2 Mo.App. 106, 107; S. C., 72 Mo. 562; S. C., 5 Mo.App. 585; Matter of Water Com'rs of Jersey City, 2 Vroom (N. J.) 72; Bank v. Railroad, 49 Vt. 167. (2) The verdict and judgment of the lower court vested the right, and the supreme court merely declared the legal fact which had existed from the rendition of the verdict. Bank v. Railroad, 49 Vt. 167; Stacey v. Railroad, 27 Vt. 39; Railroad v. Lackland, 25 Mo. 532; Leisse v. Railroad, 2 Mo.App. 105; State v. Hay, 44 Mo. 116; Railroad v. Nesbit, 10 How. 395; Lancaster v. Kennebec County, 62 Maine, 272; State v. Keokuk, 9 Iowa, 438; Wilkerson v. Buchanan County, 12 Mo. 328; Matter of M. P. G., 60 N.Y. 319; Farmer v. Hooksett, 28 N.H. 244; Blockshire v. Railroad, 13 Kan. 514; Matter of W. P., 56 N.Y. 144; Martin v. Mayor of B., 1 Hill, 545; Matter of Canal St., 11 Wend. 155.

C. O. Tichenor for respondent.

(1) The meaning of just compensation is that the owner shall not be deprived of his possession without at the same time receiving an equivalent for it. Walther v. Warner, 25 Mo. 286. And, until the assessed damages are paid to the land-owner, the title continues in him. Green v. Railroad, 82 Mo. 657; St. Louis v. Evans, 85 Mo. 336. (2) Until possession has been taken, interest cannot be allowed; so long as the owner holds possession and has the use, the compensation should not bear interest; in other words, the possession and use of the property must be regarded as an equivalent for interest. Com'rs v. Dunbery, 91 Ill. 57; City v. Palmer, 93 Ill. 125; Phillips v. Com'rs, 119 Ill. 645; City v. Barbian, 80 Ill. 482; Cook v. Com'rs, 61 Ill. 122; City v. Reynolds, 31 Ill. 529; Railroad v. McClintock, 68 Ill. 296; Edmunds v. Boston, 108 Mass. 551; Hammersly v. The Mayor, 56 N.Y. 533; Com'rs v. Freeholders, 15 Vr. 570; Stewart v. County, 2 Barr 340; Railroad v. Brunson, 61 Pa. 570; Corell v. Cole, 16 Mich. 223.

Barclay, J. Ray, C. J., and Brace, J., concur. Sherwood and Black, JJ., dissent.

OPINION

Barclay, J.

-- The issue of law here is whether or not interest runs upon the award of damages assessed as compensation for land taken for public use by the judgment of the circuit court, pursuant to the terms of the Kansas City charter of 1875. Sess. Acts, 1875, p. 244, art. 7.

The situation of the parties in interest relative to the subject of controversy is this:

Neither the plaintiff nor the city was dissatisfied with the original award fixing the value of plaintiff's property with a view to its appropriation to public use. The long delay in reaching the end of the condemnation case arose from the acts of other parties. During it the plaintiff remained in possession of the land, but his enjoyment and use thereof were not such as belonged to complete ownership. His tenure, then, might be characterized as a sort of base or qualified fee, liable to be determined at any moment by the issue of the appellate proceedings. He could not, with any degree of confidence, improve the property, or make any but the most transient agreements for its use. He could not dispose of it except subject to the paramount public easement which had become impressed upon it. So far as concerned his beneficial rights as owner, the judgment of condemnation amounted to the "taking" of the property for public use, and the price for such taking then became justly due him.

On this state of facts we are to determine whether plaintiff is entitled to interest during the years of delay which intervened between the date of judgment by the circuit court, and its affirmance on the appeal taken by other parties. No claim is made by him here for interest from any earlier date.

The case in hand is governed by a charter prescribing with some minuteness the steps to be taken to subject private property to public use for street purposes in Kansas City. It provides that, after the passage of an ordinance by the common council for establishing or opening a street, and the establishment of limits within which private property may be charged with benefits from the proposed improvement, the mayor shall conduct the proceedings, and ascertain, by verdict of a jury of disinterested freeholders of the city, the amount of compensation to be paid for any land sought to be taken, and the amount of benefits properly chargeable against the city generally and against the adjacent parcels of property within the district prescribed. Notice to all interested is provided for. After the verdict is rendered it is reported by the mayor to the city council, and, unless a proper appropriation, in accordance with the proceedings had, is made by the latter within sixty days thereafter, the whole proceedings are void. If, however, the verdict, etc., be confirmed by the council, any party in interest may within the next twenty days appeal to the circuit court of the county where the cause is then triable "de novo." New parties may there be brought in, if necessary, and, after a finding or verdict (if confirmed by the court), "judgment shall be entered thereon that the city have and hold the property sought to be taken for the purposes specified in the ordinance providing for the improvement, and pay therefor the amount assessed against the city, and full compensation assessed therefor, and that the several lots and parcels of private property, assessed to pay compensation by the verdict or finding, stand charged and be bound respectively for the payment of assessments, with interest, as provided in this act, and such judgment shall be enforced by special execution to collect assessments as aforesaid, without special tax bills, and the court or judge may, by execution or otherwise, put the city in possession of the property taken, or any part thereof, the full compensation therefor being paid or tendered." Sess. Acts, 1875, p. 249, sec. 6.

A record of these proceedings is required to be preserved by the city clerk.

If the city fails to collect any assessment for benefits in whole or in part, it may pay the amount not so collected out of the city treasury.

The foregoing is a sufficient sketch, for the purposes of this case, of the material parts of the act in question.

It is evident from these provisions that, at least as between the city and the property-owner, such judgment of the circuit court, as is mentioned, should be treated as a final one. The title to the land is thereby vested in the city for public purposes. The then price thereof is ascertained. The charter is silent as to interest upon the compensation adjudged for the property taken, though it provides for a recovery...