School District of Kansas City v. Phoenix Land & Improvement Co.

• Decision Date: 08 October 1926
• Docket Number: 27253
• Citation: 287 S.W. 621,315 Mo. 775
• Parties: School District of Kansas City v. Phoenix Land & Improvement Co., Appellant
• Court: Missouri Supreme Court

287 S.W. 621

315 Mo. 775

School District of Kansas City v. Phoenix Land & Improvement Co., Appellant

No. 27253

Supreme Court of Missouri

October 8, 1926

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Cooper & Neel, McAllister, Humphrey & Pew and Wallace Sutherland for appellant.

(1) Under the general condemnation statute governing this proceeding, respondent waived its right to abandon the proceeding by not filing its election within ten days after the date the report of the commissioners was filed; and the election to abandon, filed by respondent more than eight months after said date, should be disregarded. Mo Constitution. art. 12, sec. 4; Secs. 11143, 1793, R. S. 1919; Gray v. Ry. Co., 81 Mo. 135; Chicago Ry. Co. v McGrew, 113 Mo. 390; St. Louis Ry. Co. v. Fowler, 113 Mo. 458; St. Louis Ry. Co. v. Knapp-Stout & Co., 160 Mo. 396; St. Louis & K. C. Ry. Co. v. Donovan, 149 Mo. 93; Milwaukee Ry. Co. v. Stolze, 76 N.W. 1113; In re Commissioners of Palisades Park, 151 N.Y.S. 977; People ex rel. v. Gas Light Co., 78 N.Y. 56, 34 Am. Rep. 500. (2) The award of the commissioners became a judgment, upon which the appellant is entitled to execution or other appropriate remedy, and after such judgment there can be no abandonment, and the award must be paid. Mo. Constitution, art. 12, sec. 4; Secs. 1793, 1795, R. S. 1919; Sprague v. Ry. Co., 122 Wis. 509, 106 Am. St. 997; State ex rel. McFarland v. Erskine, 206 N.W. 447; Big Lost River Irrigation Co. v. Davidson, 121 P. 93; Milwaukee Ry. Co. v. Stolze, 76 N.W. 1113. (3) The appellant is entitled to a strict compliance with the legal provisions authorizing the condemnation proceeding. 7 Cyc. Pl. & Prac. 468; Gray v. Ry. Co., 81 Mo. 135; Schaffner v. St. Louis, 31 Mo. 272; Orrick School Dist. v. Dorton, 125 Mo. 439; St. Louis v. Glasgow, 254 Mo. 272.

McCune, Caldwell & Downing for respondent.

(1) The school district is authorized to condemn land for school purposes and proceed in the same manner as provided for condemnation of rights-of-way by railroads or similar corporations as provided in Art. 2, Chap. 113, R. S. 1919. See Section 11428. (2) The school district may abandon its purpose to condemn and thereupon the assessment of damages becomes void. Meadow Park Land Co. v. School District, 301 Mo. 688. (3) The school district had the right to abandon the condemnation proceeding within ten days after the assessment of damages by a jury. State ex rel. Hilleman v. Fort, 180 Mo. 97; Murphy v. Barron, 286 Mo. 390. (4) It was not necessary that the report of the commissioners should be set aside to entitle the school district to a jury trial. Southern Mo. Railroad Co. v. Wyatt, 223 Mo. 347; Southern Ry. Co. v. Woodward, 193 Mo. 656; St. Louis, I. M. & S. Ry. Co. v. Pfau, 212 Mo. 398; Murphy v. Barron, 286 Mo. 390; Art. 12, sec. 4, Mo. Constitution; St. Louis Railroad Co. v. Realty & Inv. Co., 205 Mo. 167; Rothan v. Railroad Co., 113 Mo. 132; Chicago Ry. Co. v. Miller, 106 Mo. 458; Cape Girardeau Railroad Co. v. Blechle, 234 Mo. 471; Chicago Ry. Co. v. McGrew, 113 Mo. 390. (5) It was not necessary that the report of the commissioners should be set aside to entitle the school district to abandon the proceedings. Cape Girardeau Railroad Co. v. Blechle, 234 Mo. 471; Southern Mo. Railroad Co. v. Wyatt, 223 Mo. 347; Rothan v. Railroad Co., 113 Mo. 132; Murphy v. Barron, 286 Mo. 405.

Walker, J. All concur, except Graves, J., absent.

OPINION

WALKER

This is an action by a school district to condemn land in Kansas City for school purposes under Section 11428, Revised Statutes 1919, which makes applicable by reference Sections 1793 and 1795, of Chapter 13, Article 2, Revised Statutes 1919, authorizing the condemnation of lands for the use of railroads and other corporations named therein.

The petition is in the usual form. An answer was filed by the appellant admitting the material allegations of the petition but otherwise irrelevant. In conformity with the prayer of the petition commissioners were appointed to view and appraise the land sought to be condemned; they appraised it at $ 47,627.75, and filed their report with the clerk of the court May 18, 1925. The respondent on May 27, 1925, under Section 1795, filed exceptions to this report and asked that the same be set aside as in excess of the value of the land and demanded a trial by jury to reassess the damages. On June 3, 1925, before the exceptions had been ruled upon by the court, the appellant filed a motion for an order on the respondent, requiring it to pay to the appellant or to the clerk of the court the amount of the award of the commissioners, alleging as a reason therefor that the appellant had not within ten days of the filing of the commissioners' report formally abandoned the proposed appropriation of appellant's land. On the 6th day of June, 1925, the court overruled appellant's motion, and made the following order relative to the respondent's exceptions and demand for a jury trial, viz:

"Now on this day comes on for hearing upon plaintiff's exception to the report of the commissioners and upon plaintiff's demand for a jury trial herein, and the court finds that the plaintiff's demand for a jury hearing should be and the same is now accordingly sustained.

"It is therefore ordered that this cause be tried in due course by a jury under the supervision of the court as in ordinary cases of inquiry of damages."

On the 23rd day of February, 1926, the respondent made formal application for and was granted leave to abandon the proposed appropriation and to dismiss the proceeding, which was granted. The appellant moved to strike from the files the motion to abandon and dismiss, and the same was overruled. The appellant, having properly preserved objections and exceptions to the adverse rulings of the court, applied for and was granted an appeal to this court.

School districts, under Section 11428, Revised Statutes 1919, are clothed with the power of eminent domain for the condemnation of lands for school purposes by authorizing them to proceed in the manner prescribed by the statute (Chap. 13, art. 2, R. S. 1919) for the condemnation of lands by railroads and other corporations named therein.

Section 11428, supra, provides in effect, that whenever a school board (in a city of more than 75,000 or less than 500,000) shall select a site for a school house . . . and cannot agree with the owner as to the price to be paid for the same . . . the board may in the name of the district proceed to condemn the same in the manner as provided for the condemnation of the right of way for railroads in Article 2 of Chapter 13, supra; and on such condemnation and the payment of the appraisement as provided, the title to the land sought to be condemned shall vest in the school district.

Section 1783, of Chapter 13, Article 3, supra, provides, in effect, that the trial court shall appoint three commissioners to view the property sought to be condemned, who shall, after having viewed the same, make a report under oath and file the same with the clerk of the court, stating the amount of damages the owner is entitled to receive for his land; and thereupon the company seeking the condemnation shall pay to the clerk the amount thus found for the party in whose favor the damages have been assessed. On the making of such payment the company shall hold the interest in the property so appropriated for the use for which it was condemned. Upon the failure to pay the assessment the court may, upon notice and motion, enforce the payment of same by execution, unless the company within ten days from the return of the assessment, shall elect to abandon the proposed appropriation by a writing to that effect to be filed with the clerk and entered on the minutes of the court.

Section 1795 provides, in effect, that upon the filing of the report by the commissioners the clerk of the court shall notify the party whose land is affected and the report may be reviewed by the court on written exceptions filed by either party within ten days after the service of the notice aforesaid; and the court may make such order therein as right and justice may require and may order a new appraisement upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury.

I. The contention of the appellant is that the abandonment of the proposed appropriation not having been made by the respondent within ten days from the return of the assessment of damages by the commissioners as provided by Section 1793, rendered the award final and that the appropriation thereupon became absolute, thus rendering the liability of the respondent therefor complete. This conclusion would follow but for the intervening facts disclosed by the record. It is there shown that within ten days from the filing of the report of the commissioners with the clerk of the court, the respondent filed exceptions to the same and demanded a jury to assess the damages. These exceptions were on file and may be said to have been in graemio legis, when the...