St. Louis Brewing Ass'n v. City of St. Louis

• Decision Date: 28 March 1902
• Citation: 67 S.W. 563,168 Mo. 37
• Parties: ST. LOUIS BREWING ASS'N v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

67 S.W. 563

168 Mo. 37

ST. LOUIS BREWING ASS'N v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

March 28, 1902.

EMINENT DOMAIN — MUNICIPAL CORPORATIONS — DISMISSING PROCEEDINGS — LIABILITY FOR EXPENSES OF PROPERTY OWNER.

Under the charter of the city of St. Louis (article 6, § 9), providing that the city shall have the right to dismiss proceedings for the condemnation of land at any time before the final confirmation of the report of the commissioners, on payment of the costs thereof, the city is not liable to a property owner for attorney's fees and other expenses incurred in contesting proceedings to condemn his property for a street, where such proceedings were dismissed by the city, unless the proceedings were unreasonably and vexatiously protracted or delayed.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by the St. Louis Brewing Association against the city of St. Louis. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an appeal by the plaintiff from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to its petition, and rendering final judgment for defendant. The petition, omitting caption, is in these words: "The plaintiff states that it now is, and on the several days and dates hereinafter mentioned was, a corporation duly created and existing under and by virtue of the laws of the state of Missouri, and that the defendant is, and on said several days was, a municipal corporation, likewise created under the laws of said state. Plaintiff further states: That on said several days and dates it was, and still is, the owner and in possession of the following described real estate, being, lying, and situate in the city of St. Louis, Missouri, to wit: The whole of city block No. 460 north, bounded north by Market street, west by Seventeenth street, south by Walnut street, and west by Eighteenth street. That the said real estate is and was improved; there being erected thereon large, costly, and valuable improvements, constituting plaintiff's brewery plant, known as the `Excelsior Brewery.' That said premises aforesaid have a front of two hundred and ninety-five feet and three inches (295' 3") on the south line of Market street, by a depth southwardly, along the east line of Eighteenth street, to the north line of Walnut street, of three hundred and twelve feet and three inches (312' 3"). That said Eighteenth street, abutting plaintiff's said property on the west, between Market and Walnut streets, is, and at said times was, a street sixty feet (60') wide. That by Ordinance No. 17,799, which went into effect on or about the 16th day of February, 1895, entitled `An ordinance to widen Eighteenth street between Clark avenue and Pine streets,' and which said ordinance was duly passed by the municipal assembly of the city of St. Louis, said municipal assembly ordained that said Eighteenth street should be widened between said Clark avenue and Pine street so as to make the same a street one hundred feet (100') wide, and established the east line of said Eighteenth street, as widened, to be along the front of plaintiff's said property on said street, between Market and Walnut streets, forty feet east of the east line of the said then existing Eighteenth street; and said assembly did further, in and by said ordinance, authorize and instruct the city counselor of said city to cause said Eighteenth street to be so widened in accordance with law. That thereafter, to wit, on the 27th day of March, 1895, and under authority of said ordinance, the defendant, the city of St. Louis, instituted its suit in the circuit court of St. Louis, Missouri, against the owners of the real estate and property abutting and adjoining said Eighteenth street on the east, for the purpose of widening said street as prescribed in said ordinance, and of condemning sufficient of the property of said property owners to cause said street to be so widened. That the plaintiff herein, as one of the owners of such property, was made a party defendant in said suit. That it was duly served with summons therein, and duly appeared to said suit. And plaintiff alleges that in and by said suit said defendant sought and undertook to condemn, for the purpose of widening said Eighteenth street as aforesaid, a strip of ground, together with the buildings and improvements thereon, having a front of forty feet on the south line of Market street, by a depth southwardly to Walnut street of three hundred and twelve feet and three inches (312' 3"), and being the western forty feet of plaintiff's said real estate hereinbefore described. And plaintiff states that said suit aforesaid remained pending in said circuit court, and that divers and sundry proceedings were had therein from time to time, from the date of the institution of said suit, to wit, the 27th day of March, 1895, to the 19th day of April, 1899, on which last-mentioned day the defendant, the city of St. Louis, voluntarily dismissed its said suit; the said municipal assembly of said city having, by Ordinance No. 19,786, duly passed by said assembly, repealed said first-named ordinance, and instructed said city counselor to dismiss said proceedings. And plaintiff states that from and after the date of the institution of said suit aforesaid, and during its pendency, and until the date of its dismissal aforesaid, the plaintiff was compelled to incur, and did incur, large expenses for counsel fees and for expert witnesses, and other expenses, in making defense against the appropriation of its said property aforesaid for said purposes aforesaid, and in the protection of its property rights and interests involved in said proceedings, to the amount of eighty-one hundred and three and 82/100 dollars ($8,103.82), all of which were reasonable and proper expenses for such purposes. Wherefore plaintiff prays judgment against said defendant for said sum of eighty-one hundred and three and 82/100 dollars." At the return term of the court the defendant filed the following demurrer to said petition: "Now comes the defendant, and demurs to the petition of plaintiff herein, and, for grounds of such demurrer, avers that said petition does not state facts sufficient to constitute a cause of action against this defendant," — which demurrer the court sustained; and, plaintiff declining to plead further, the court on ...