Rogers v. City of St. Charles

• Decision Date: 14 November 1876
• Citation: 3 Mo.App. 41
• Parties: BENJAMIN W. ROGERS, Appellant, v. CITY OF ST. CHARLES, Respondent.
• Court: Missouri Court of Appeals

3 Mo.App. 41

BENJAMIN W. ROGERS, Appellant,

v.CITY OF ST. CHARLES, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 14, 1876.

1. To sustain a condemnation of property for public use there must be an attempt by the party exercising the right of eminent domain to come to an agreement with the property holder before instituting proceedings to condemn.

2. The first award, if regular, fixes the value of the property condemned, and, unless the object for which the property was taken be abandoned, is binding, and is a bar to any subsequent action to condemn the same property for the same use.

3. An objection to the form of the action was properly overruled on authority of Soulard v. City of St. Louis, 36 Mo. 546, and Jamison v. City of Springfield, 53 Mo. 224.

4. It is not in accordance with the spirit of the constitutional provision concerning taking private property for public use that the State or its agents may pronounce a piece of property necessary or unnecessary, according to the terms upon which it is possible to acquire it.

APPEAL from St. Charles Circuit Court.

Reversed and remanded.

Lackland & Broadhead, for appellant, cited: Tamm v. Kellogg, 49 Mo. 118; McKee v. City of St. Louis, 17 Mo. 184; Soulard v. City of St. Louis, 36 Mo. 546; Jamison v. City of Springfield, 53 Mo. 224; Northrupp v. Mississippi Valley Ins. Co., 47 Mo. 443, 444; Garner v. McCullough, 48 Mo. 318; The State v. Metzger, 26 Mo. 65; Ells and Wife v. Pacific R. R. Co., 51 Mo. 200; Cunningham v. Pacific R. R. Co., 61 Mo. 33; Jefferson County v. Cowan, 54 Mo. 234; Schell v. Leland, 45 Mo. 290; Cloon v. Beattie, 46 Mo. 391; Bersch v. Schneider, 27 Mo. 101; Hamberger v. Pacific R. R. Co., 43 Mo. 196; Morton v. Reid, 6 Mo. 64, 74; Leslie v. City of St. Louis, 47 Mo. 474; Anderson v. City of St. Louis, 47 Mo. 479; Lind v. Clemens, 44 Mo. 540; Fowler v. City of St. Joseph, 37 Mo. 228; City of St. Charles v. Rogers, 49 Mo. 530; City of St. Charles v. Stewart, 49 Mo. 132; City of St. Joseph v. Hamilton, 43 Mo. 282; Higgins v. Peltzer, 49 Mo. 155; Fithian v. Monks, 43 Mo. 520; Powers v. Hurmat, 51 Mo. 136.

T. F. McDearmon, for respondent, cited: Lindell, Admr., v. Hannibal & St. Joseph R. R. Co., 36 Mo. 543; Soulard v. City of St. Louis, 36 Mo. 546; Rev. Chart. St. Charles, art. 7, sec. 3 (Sess. Acts 1869, p. 151); Ells v. Pacific R. R. Co., 51 Mo. 200; Quincy, Missouri & Pacific R. R. Co. v. Kellog et al., 54 Mo. 334; City of St. Charles v. Stewart et al., 49 Mo. 132; City of St. Charles v. Rogers, 49 Mo. 530; Reppstein et al. v. St. Louis Mutual Life Ins. Co., 57 Mo. 86; Fugate v. Glasscock, 7 Mo. 377; Cannon v. McManus, 17 Mo. 345; Rogers ex rel. v. Hug, 44 Mo. 116.

GANTT, P. J., delivered the opinion of the court.

This was an action to recover the value of certain real estate of plaintiff, now appellant, which the city of St. Charles had taken and appropriated as a street.

In 1867 the city of St. Charles, by ordinance, provided for the widening of Clark Street, and the condemnation for that purpose of the lots of various proprietors. Under this ordinance, proceedings admitted to be entirely regular were had, resulting in the condemnation of plaintiff's lot, and awarding to him as damages therefor the sum of $1,000. The city did not pay this award, nor did it take possession of the property condemned. After the delay of a year, Rogers attempted to compel the city to pay the amount to him. The city set up, by way of an answer, that it had no further or present use for the lot, and abandoned the undertaking of widening the street. Its power to do this was declared by the Circuit Court, and the Supreme Court, on appeal (44 Mo. 116), affirmed the judgment.

Thereupon the plaintiff commenced improving his lot, and had nearly completed the erection of a building upon it when the city, having obtained a change of its charter, commenced new proceedings to condemn the same property for widening the same street to the extent as before. In this proceeding this property, which had been valued by the former jury at $1,000, was, with its improvements, assessed at $450.

Rogers objected to this new proceeding at every stage. He claimed that the former award superseded any other, and fixed the value of the property, which the city must pay unless it abandoned altogether the purpose of widening the street. There being no appeal to the Circuit Court, under the charter of 1869, the objections of Rogers were unavailing. City of St. Charles v. Rogers, 49 Mo. 530.

Thereupon the city entered upon the land in controversy, ejected Rogers therefrom, and appropriated it to public use; and Rogers brought this suit to recover its value. To this action the city answered, claiming the property under the second inquest; averred its readiness to pay the amount of it, tendered it, and prayed judgment. This answer did not aver that, before commencing proceedings to obtain the second condemnation (the answer made no mention of the first, and the petition was equally silent as to it), the city had made any attempt to come to an agreement with Rogers as to the value of the land. For this reason plaintiff demurred. The Circuit Court overruled the demurrer. Plaintiff then replied, denying the legality and regularity of the second proceedings; set up the first proceedings, and the award then made, as an absolute bar to the commencement of the second, alleging that the first proceedings exhausted the power of the city to condemn the property without a new legislative grant. On motion this part of the reply was struck out, plaintiff excepting. The remaining issues were tried by the court, both parties waiving a jury. Plaintiff proved the value of the property and the entry thereon by the city. The city put in evidence the second proceedings, to the admission of which plaintiff objected, because, first, it did not appear that any effort had been made to come to a private agreement with the plaintiff before commencing them; second, because the former proceedings exhausted the power of the city, etc. These objections were overruled, plaintiff excepting. Defendant then gave evidence that the sum of $450 had been tendered to the plaintiff.

Plaintiff then proved affirmatively that no attempt had been made by the city to come to a private agreement with him before commencing the second proceedings, and offered in evidence the record of the first proceedings. The court, on defendant's objection, excluded this record, and plaintiff excepted.

This was substantially all the evidence; and the plaintiff asked the following declarations of law, viz.:

1. That the omission of all effort to come to an agreement with plaintiff was fatal to the jurisdiction of the recorder to maintain the second proceedings.

2. That the first condemnation exhausted the power of the city, and that it could not institute the second proceedings to appropriate the same land to the same purposes, the first proceedings remaining valid, though it might altogether abandon the purpose originally contemplated.

I. An objection was made by the defendant below to the form of the action. This objection was overruled by the court, and properly, on the authority of the cases of Soulard v. City of St. Louis, 36 Mo. 546, and Jamison v. City of Springfield, 53 Mo. 224.

II. The omission of the record of the second condemnation to state an attempt on the part of the city to come to an agreement with the plaintiff was fatal to the validity of that record. Without such attempt the recorder acquired no jurisdiction of the case, and the proceedings before him were null and void. In the recent case of the Kansas City, St. Joseph & Council Bluffs Railroad Company v. Campbell et al., 62 Mo. 585, this point is decided in conformity with numerous previous similar adjudications of it by the Supreme Court of Missouri, which are cited.

III. If this were all, the cause must be remanded for the ascertainment of the value of the property by the verdict of the jury; or, possibly, for proceedings to condemn it anew.

But we are of opinion that this value is fixed by the first award; that this is binding upon the city, except in the event of the...