St. Louis v. Smith

• Decision Date: 11 June 1930
• Docket Number: No. 28434.,28434.
• Citation: 30 S.W.2d 729
• Parties: CITY OF ST. LOUIS v. FREDERICKA SMITH, Executrix of Estate of HENRY M. SMITH ET AL., Appellants.
• Court: Missouri Supreme Court

30 S.W.2d 729

CITY OF ST. LOUIS v. FREDERICKA SMITH, Executrix of Estate of HENRY M. SMITH ET AL., Appellants.

No. 28434.

Supreme Court of Missouri. Division Two.

June 11, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED AND REMANDED.

R.M. Nichols for appellants.

(1) This is not an action in the sense of the common law, but a special proceeding, and the complete record of the case having been brought to this court by the appeal, all questions affecting the substantial rights of the parties should be considered by the court; the trial upon appeal is in effect de novo. Sedalia v. Ry. Co., 17 Mo. App. 105; St. Joe Term. Railroad Co. v. Railroad Co., 94 Mo. 535; Schmied v. Keeney, 72 Ind. 309; Hooker v. Railroad Co., 65 Vt. 47; Wooster v. Railroad Co., 57 Wis. 311; Peninsular Railroad Co. v. Howard, 20 Mich. 18. (2) The court erred in its refusal to summon the jury to try and determine the value of the appellant's property. Sec. 21, Art. 2, Mo. Constitution; Secs. 8679, 8752, R.S. 1919; S.M. & A. Railroad Co. v. Woodward, 193 Mo. 659; Bates v. Comstock, 306 Mo. 327; Chicago etc. Railroad Co. v. Miller, 106 Mo. 458; Chicago etc. Railroad Co. v. Townsite Co., 103 Mo. 469; Drainage Dist. v. Campbell, 154 Mo. 151; Railroad Co. v. Realty & Inv. Co., 205 Mo. 167; Tarkio Drainage Dist. v. Richardson, 237 Mo. 49; Kansas City v. Smith, 238 Mo. 323. (3) The market value was established by a preponderance of evidence of eight witnesses, whose evidence in a general average, showed that the property was worth over $24,000. The testimony of plaintiff's witness showed that the property was worth $10,000 — $1,500 more than the Commission allowed. There can be no doubt but that appellants were not allowed more than one-third of the value of their property, and this fact is reinforced by the subsequent Commission increasing the award to the Scott estate — a piece of property of half the dimensions — in the sum of $4,500. (4) The testimony of the diminution of the rental value of the property by reason of the use of the sidewalk by the abutting property owners was error, because abutting property owners have a vested right in a sidewalk in the prosecution of their business, which right is not a mere license revocable at the pleasure of the public. Schopp v. St. Louis, 117 Mo. 131; DeGeofroy v. Merch. B.T. Co., 179 Mo. 698. (5) The court erred in allowing the commissioner, in answer to the question as to the "award of the commissioners" on the Smith property, that "the award on the land is $4,500 and the improvements, $4,000 or a total award of $8,500." The report was not admissible, and the verbal statement of the commissioner as to its contents was not admissible. Railroad v. Second St. Imp. Co., 256 Mo. 286; School District v. Phoenix etc. Co., 297 Mo. 332. (6) Instruction 2, in behalf of respondent, was erroneous, because there was no testimony which would justify the court in declaring the law as stated in said instruction, that "the market value is the sum which the exceptor would obtain if he wanted to sell it, but was not forced or compelled to sell, from one who wanted to buy it but was not compelled to buy." There was no evidence of an offer to sell or an offer to buy, and if such evidence had been offered it would have been excluded, as it was when Mr. Smith offered to testify. W.U. Tel. Co. v. Ring, 5 Am. & Eng. Annot. Cases, 97.

Julius T. Muench, G. Wm. Senn and J.B. Steiner for respondent.

(1) In the absence of fraud, mistake, prejudice or passion, manifested in the rendering of the verdict, this court will not interfere with the ruling of the trial court by weighing the evidence. St. Louis v. Lanigan, 97 Mo. 175; St. Louis v. Calhoun, 222 Mo. 44; Cape Girardeau v. Dennis, 67 Mo. 438; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663; St. Louis v. Brown, 155 Mo. 545, 567; St. Louis v. Abeln, 170 Mo. 318; St. Louis v. Railway, 272 Mo. 80; Doyle v. Railway, 113 Mo. 280; Ry. v. Knapp-Stout Co., 160 Mo. 396. (2) The trial court properly denied the appellants' trial by jury in the trial of exceptions to the commissioner's report. Missouri Constitution, art. 12, sec. 4; Kansas City v. Smart, 128 Mo. 272; Kansas City v. Vineyard, 128 Mo. 75; St. Louis v. Roe, 184 Mo. 324; Kansas City v. Smith, 238 Mo. 323; 20 C.J. 999, sec. 396; Charter of St. Louis, art. 221, sec. 3; Kansas City v. Marsh Oil Co., 140 Mo. 470; Brunn v. Kansas City, 216 Mo. 108; State ex rel. Graham v. Seehorn, 246 Mo. 557; State ex rel. Kansas City v. Lucas, 317 Mo. 255; Albany v. Gilbert, 144 Mo. 224; State ex rel. v. Field, 99 Mo. 352; St. Joseph v. Geiwitz, 148 Mo. 210. (3) The fact that the appellants have the right of ingress and egress in and upon public sidewalks abutting on said property does not give them the right to use the sidewalks for storage and for the transaction of business on said public sidewalk. The abutting owner cannot acquire vested rights in the public sidewalk by adverse user. St. Louis v. Railway, 114 Mo. 13; Columbia v. Bright, 179 Mo. 441; State ex rel. v. Vandalia, 119 Mo. App. 423; Hurst v. Dulaney, 84 Va. 701; McKinney v. Nashville, 102 Tenn. 131; Clapp v. Boston, 133 Mass. 367; In re Low, 233 N.Y. 334, 135 N.E. 521; Stapenhorst v. St. Louis, 229 S.W. 754; Julia Building Assn. v. Telephone Co., 88 Mo. 258; Cartwright v. Telephone Co., 205 Mo. 126; St. Louis Charter, art. 8, sec. 5, par. b. (4) In the hearing by the trial court of the exceptions to the report of commissioners in condemnation proceedings, the commissioners are competent witnesses. St. Louis v. Abeln, 170 Mo. 318.

WALKER, J.

This suit is brought by the city of St. Louis against the owners of certain property in that city, including that of the appellants, to condemn their property under the provisions of Section 31107 of the ordinances of said city, authorizing the condemnation of private property for public use, for the purpose of opening and widening Franklin Avenue as a public street.

In conformity with the course prescribed by our procedure in cases of this character, aside from the objections to their regularity urged by the appellants, which we will discuss later, the commissioners appointed by the court awarded damages to Henry M. Smith in the sum of $8,500 for the taking of his entire property on Fourth Street. Upon his subsequent death during these proceedings, his wife, who was the executrix of his estate, was made a party defendant. As his legal representative, together with his heirs, who were also made parties, an appeal was taken to this court from the judgment rendered on said award. The property involved in this suit is a triangular strip of ground fronting on Fourth Street and running through to Third Street. The base of this triangle was owned by the Schopp estate. It has an area on its base of 41 feet and 8 inches on Franklin Avenue, 62½ feet on Fourth Street and 66 feet on Third Street. Adjoining it on the north is a piece of property owned by the Scott estate, having a frontage of 25 feet on the east line, or Fourth Street, by a depth on its south line of 25 feet and 6½ inches, and on its north line of 16 feet and 3½ inches, and a frontage on Third Street of 25 feet and 5 inches. The apex of this triangle was owned by Henry M. Smith. It had a frontage of 56 feet and 6 inches on Fourth Street, and a width on the southern line, or the line adjoining the Scott estate, of 16 feet and 5 inches, and on Third Street a frontage of 59 feet and 8¾ inches, running to a point upon the north line. The following map more clearly indicates the location of this property.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We are only concerned here with that portion of the property owned by the Smith estate. Without otherwise disposing of the motion of the respondents to strike out certain portions of the appellants' abstract, it will suffice to say that the irrelevant portions of the same will be disregarded.

The issues are sufficiently set forth in the appellants' assignment of errors to enable a clear understanding to be had of the matters in controversy. These assignments are as follows:

1. The court erred in overruling appellants' motion for a jury to hear and determine damages sustained upon the exceptions filed to the commissioners' report.

2. The court erred in overruling appellants' exceptions to the report of the commissioners as to the market value of appellants' property shown by a preponderance of the testimony.

3. The court erred in admitting testimony as to the diminution of the rental value of appellants' property by reason of the claimed permissive use of the sidewalk in appellants' business.

4. The court erred in giving Instruction 2, at the instance of respondent, for the reason that no testimony was offered and none admitted, as to the method described in said instruction for ascertaining the market value of appellants' property.

5. The court erred in overruling appellants' objection and exception to the testimony of John C. Greulich as to what the award of the commissioners showed.

6. The court erred in striking out the testimony of R.C. Buchanan, upon the ground that his testimony as to the value of the property was based upon its rental income, when his testimony showed that he was acquainted with the property and knew its market value.

I. This is a proceeding under the law of eminent domain. An essential to the proper exercise of the rights granted by this law is that every legislative requirement, whether Strict it be by the state or a municipality, must be Compliance. strictly complied with. [State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490.]

II. The first contention of the appellants is that an essential to the proper exercise of the respondent's right to condemn their property was denied by the trial court in refusing to grant them a trial by jury to hear and determine the Trial by Jury: damages sustained by the award of the Constitutional...