Simpson v. City of Kansas City

• Decision Date: 01 July 1892
• Citation: 20 S.W. 38,111 Mo. 237
• Court: Missouri Supreme Court
• Parties: SIMPSON <I>et al.</I> v. CITY OF KANSAS CITY.

20 S.W. 38

111 Mo. 237

SIMPSON et al. v. CITY OF KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

EMINENT DOMAIN — EXERCISE OF POWER — NECESSITY — PROCEDURE — IMPROPER DELAY — ACTION FOR DAMAGES.

1. The necessity and expediency of exercising the right of eminent domain are questions essentially political, and not judicial, in their nature; and the grant by the legislature to Kansas City of this right carried with it also the power to determine the necessity for its exercise; and action taken by the proper corporate board or tribunal for a contemplated public use is conclusive on the court.

2. Under Kansas City Charter, art. 7, § 5, providing that if the assessment of damages in condemnation proceedings be not confirmed within 60 days from making the report "the proceedings and verdict shall be void," the right to discontinue such proceedings is implied.

3. Such subsequent discontinuance is not evidence of a wrongful commencement.

4. In an action against a city which had instituted proceedings to condemn land of plaintiffs, who were not parties to the condemnation proceedings, to recover compensation on account of being unable "to lease, sell, or improve" their property pending the proceedings, and of "trouble and expense" in watching the proceedings which were prosecuted under the city charter which allowed an appeal from the verdict of the jury to the circuit court, where it was given precedence over all other cases and required a trial de novo, the petition charged that the proceedings occupied about nine years from commencement to final dismissal, and that this delay was unexplained and wrongful. Held, that the petition made out a prima facie case, and defendant must show that the delay was unavoidable, and that reasonable diligence was used in prosecuting the proceedings.

Appeal from circuit court, Jackson county.

Petition by Isaac P. Simpson and others against Kansas City, claiming compensation for damages for the unnecessary taking of property in condemnation proceedings, and for a wrongful and unnecessary delay in prosecuting same. General demurrer thereto sustained, and judgment entered for defendant. Plaintiffs appeal. Reversed.

Ed. G. Taylor, for appellants. F. F. Rozelle and Jas. Black, for respondent.

MACFARLANE, J.

The petition in this case charged that the defendant, a municipal corporation, in 1879 commenced proceedings for widening Twelfth street, in Kansas City, and for that purpose to condemn the property of plaintiffs, to wit, lots 1, 2, 3, 4, 9, and 10, in block 57, of Turner & Co.'s addition to said city. That the proper ordinances were duly passed, and in 1881 damages were assessed by a jury duly impaneled by the mayor. From the judgment entered for the damages so assessed certain parties to said proceedings appealed to the circuit court of Jackson county, but plaintiffs took no appeal. That said proceedings were continued, pending in the courts until 1888, when an ordinance was duly passed and approved repealing the said ordinances for the widening said Twelfth street, and the said city thereupon dismissed said condemnation proceedings, and the proposed widening of said street was abandoned. That the property of plaintiffs so taken and condemned by defendant was, when the proceedings were commenced, and still is, valuable for business purposes, situated in a business portion of said city, and of great annual value, and that by reason of said proceedings to condemn said property they have been unable to rent the same, or to sell it for anything like its real value, or to improve or use the same. That, on account of said proceedings, they were compelled to employ counsel to look after and protect their interest in said proceedings, and to pay large sums of money therefor. The petition then made the following averments: "The plaintiffs say, further, that at the time of the passage of said ordinance to condemn plaintiffs' said property, in November, 1879, it was not necessary to take said property for public use as a part of said Twelfth street, and it was not necessary to so take said property at any time while said proceedings were pending; and said proceedings to condemn the plaintiffs' said property as aforesaid were needlessly and wrongfully begun by the defendant, and they were needlessly, wrongfully, and vexatiously continued by the defendant, against the protest of these plaintiffs, and said proceedings were unnecessarily delayed and kept pending over said property of the plaintiffs during said long period of time, during all of which time said proceedings were entirely under the control of the defendant, and could have been dismissed by it at any time, — all to the great damage of the plaintiffs, as above set forth. Wherefore, plaintiffs say that, by reason of the matters and things herein stated, they have been damaged in the sum of fifteen thousand dollars, ($15,000,) for which sum, with costs of this suit, they ask judgment against the defendant." To this petition a general demurrer was sustained. Judgment entered for defendant, and plaintiffs appealed.

Three questions are raised by the ruling of the court upon this demurrer — First. Did the city have the right to discontinue its proceedings to widen Twelfth street? Second. Is the city liable in damages for needlessly commencing the proceedings to widen said street? Third. Upon the discontinuance of the proceedings to condemn plaintiffs' property, was defendant liable to them for damages on account of such proceedings?

1. It has long been the rule in this state, and is the general rule elsewhere, that, in the absence of statutory regulations to the contrary, a municipal corporation has the right to discontinue proceedings for condemning property for public uses, and to abandon such public improvements, at any time before a final award, in the nature of a judgment in favor of the property owners for their compensation, is made. Railroad Co. v. Lackland, 25 Mo. 515; City of St. Joseph v. Hamilton, 43 Mo. 288; State v. Hug, 44 Mo. 117; Dill. Mun. Corp. § 609; Lewis, Em. Dom. § 656; 3 Sedg. Dam. § 1166; Mills, Em. Dom. § 311; City of St. Louis v. Meintz. (Mo. Sup.) 18 S. W. Rep. 30. No provision of the charter of Kansas City has been pointed out which is inconsistent with this rule. Indeed, the right of the city to discontinue such proceedings is fully recognized under section 5, art. 7, of the charter. This section provides that, if the assessment of damages be not confirmed within 60 days from making the report, "the proceedings and verdict shall be void." Thus it is seen the right to discontinue is not only implied, but a failure to act upon the report for more than 60 days itself operates as a discontinuance.

2. The second question must also be resolved against the theory of plaintiffs that a municipal corporation is liable to a landowner for damages inflicted by needlessly commencing and prosecuting proceedings to widen or extend a street through his property, and which are afterwards abandoned. The necessity, expediency, and propriety of exercising the right of eminent domain, either by the state or by the corporate bodies to which the right has been delegated, are questions essentially political in their nature, and not judicial. The grant by the legislature to this city of the right to take private property for use as public highways carried with it also the power to determine the necessity for its exercise, and when action has been taken by the proper corporate body or tribunal, in any case in which the contemplated use is a public one, it is conclusive upon the courts. Dickey v. Tennison, 27 Mo. 373; County Ct. v. Griswold, 58 Mo. 189; State v. Engleman, 107 Mo. ___, 17 S. W. Rep. 759; Lewis. Em. Dom. § 162; 2 Dill. Mun. Corp. § 600, (465.) The contention of plaintiffs is that the final discontinuance of the proceedings was prima facie evidence that they were unnecessary in the beginning, and consequently the whole proceeding was wrongful. This view gets some support from the cases of Leisse v. Railroad Co., 2 Mo. App. 105, 72 Mo. 561, and Rogers v. St. Charles, 3 Mo. App. 41. The intimation of the court of appeals in these cases, though not...