State ex rel. City of St. Louis v. Beck

• Decision Date: 19 October 1933
• Docket Number: 33172
• Parties: State of Missouri at the Relation of the City of St. Louis, a Municipal Corporation, Relator, v. Clyde C. Beck, Judge of the Circuit Court of the City of St. Louis, Division No. 14
• Court: Missouri Supreme Court

63 S.W.2d 814

333 Mo. 1118

State of Missouri at the Relation of the City of St. Louis, a Municipal Corporation, Relator, v. Clyde C. Beck, Judge of the Circuit Court of the City of St. Louis, Division No. 14

No. 33172

Supreme Court of Missouri

October 19, 1933

Preliminary rule made absolute.

Charles M. Hay, John T. Hicks Oliver T. Johnson and Seward McKittrick for relator.

(1) Prohibition is the proper remedy to prevent the giving to condemnation commissioners of an instruction which is in excess of the court's jurisdiction and beyond its powers. State ex rel. Tuller v. Seehorn, 246 Mo. 585; Peters v. Buckner, 288 Mo. 638; State ex rel Stroh v. Klene, 276 Mo. 206; State ex rel. Term Assn. v. Tracy, 237 Mo. 109; Dahlberg v. Fisse, 40 S.W.2d 610; State ex rel. Anheuser-Busch v. Eby, 170 Mo. 497. (2) The jurisdiction of the circuit court depends on the Charter of the City of St. Louis, and is a special jurisdiction. St. Louis v. Cruikshank, 16 Mo.App. 497; 2 Nichols, Eminent Domain (2 Ed.), sec. 425, p 1121; State ex rel. Graham v. Seehorn, 246 Mo. 541. (3) The circuit court and the commissioners appointed thereby have jurisdiction in a condemnation suit to determine only the damage to property from its appropriation to public use; such damage not including that arising from the filing and continuance of the suit and the delay incidental to its determination. (a) The purpose of the suit is to determine the just compensation required by the Constitution. The measure of damages in such cases has always been the diminution in market value of the property because of the taking, i. e., the difference in market value before and after taking. City Water Co. v. Sedalia, 6 S.W.2d 567. (b) Losses and injury incident to the litigation are damnum absque injuria. Brunn v. Kansas City, 216 Mo. 120; Kansas City v. Ward, 134 Mo. 184; Whyte v. Kansas City, 22 Mo.App. 409; 2 Nichols, Eminent Domain (2 Ed.), sec. 420, pp. 1105-8; Norris v. Mayor, etc., of Baltimore, 44 Md. 607. (c) The duties and jurisdiction of the condemnation commissioners in this cause are defined by the St. Louis Charter and do not include damages from the filing and continuance of the suit itself. St. Louis Charter, Art. XXI, Secs. 1-5. (d) The words "damaged" or "damages" used in the Constitution of Missouri, Art. II, Sec. 21, and in the St. Louis Charter, Art. XXI, refer to damages from the taking of property itself or some right or easement connected therewith, and do not refer to losses of the owner because of the proceeding. Van deVere v. Kansas City, 107 Mo. 83; Funke v. St. Louis, 122 Mo. 139; 1 Lewis, Eminent Domain (3 Ed.), sec. 365, p. 665; 2 Nichols, Eminent Domain (2 Ed.), sec. 312, p. 845; Re Pittsburgh, 243 Pa. 400, 90 A. 329, 52 L. R. A. (N. S.) 262. (4) In the absence of an allegation that the condemnation case has been needlessly, wrongfully, and vexatiously delayed by the city against the protest of the petitioner, and dismissed by the plaintiff, no action for such damages lies. Simpson v. Kansas City, 111 Mo. 237; St. Louis Brewing Assn. v. St. Louis, 168 Mo. 37; Lester Realty Co. v. St. Louis, 170 Mo. 31; Naumann v. Big Tarkio Dr. Dist., 113 Mo.App. 575; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 31 A. L. R. 343; Winkelman v. Chicago, 213 Ill. 363, 72 N.E. 1066. (5) Actions for such damages, if any, must be in a suit separate from the condemnation suit. 2 Lewis, Eminent Domain (3 Ed.), sec. 957, p. 1695; St. Louis, etc., Railroad Co. v. Railroad Co., 126 Mo.App. 278; Moberly v. Hogan, 317 Mo. 1235; Norris v. Mayor, etc., of Baltimore, 44 Md. 608; Graff v. Mayor, etc., of Baltimore, 10 Md. 554; Feiten v. Milwaukee, 47 Wis. 494; 3 Dillon, Municipal Corporations (5 Ed.), p. 1653, sec. 1045. (6) Actions for damages from delay are actions at law and must be tried before a jury. Const. of Mo., Art. II, Sec. 28; Black v. Mayor, etc., of Baltimore, 50 Md. 243. (7) Condemnation commissioners have no facilities to try issues of fact, such as are raised by actions to recover damages from needless, wrongful and vexatious delay in prosecuting the condemnation proceedings. Prohibition is proper remedy. Respondent has not questioned the propriety of the remedy sought in this proceeding and we, therefore, do not present any discussion of this matter other than citing the following cases: State ex rel. Tuller v. Seehorn, 246 Mo. 585; Peters v. Buckner, 288 Mo. 638; State ex rel. Stroh v. Klene, 276 Mo. 206; State ex rel. Term. Assn. v. Tracy, 237 Mo. 109; Dahlberg v. Fisse, 40 S.W.2d 610.

Kratky, Spencer, Soffer & Nessenfeld for respondent.

(1) Damages of the nature sought are recoverable where there has been a limited taking. (a) There may be a taking of property without a physical appropriation, or divestiture of title. For such a taking (as a limitation of the free use of property) compensation must be paid. There was a taking pro tanto of the property for eleven years. St. Louis v. Hill, 116 Mo. 527, 22 S.W. 861; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647. (b) Loss of rent may be recovered in the condemnation proceeding. St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298. (c) The measure of damages is governed by the rule of the Constitution rather than by any rule of courts that may (on other states of facts) have limited the damages recoverable. St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298. (2) Even where there is no taking, such damages are recoverable. (a) Recovery may be had by the affected property owner for damages sustained as a result of unnecessary delay and prolongation of condemnation proceedings. Simpson v. Kansas City, 111 Mo. 237, 20 S.W. 38; Winkelman v. Chicago, 213 Ill. 360, 72 N.E. 1066; Van Valkenburgh v. Milwaukee, 43 Wis. 574; In re Franklin Street, 14 Pa.Super. Ct. 403; Baltimore v. Black, 56 Md. 333; McLaughlin v. Municipality No. 2, 5 La. Ann. 504; Isley v. City of Attica, 109 N.E. 918. (b) A statute restricting the use of property pending condemnation proceedings is valid only if the owner is entitled to compensation for his damages if the property is not finally taken. Suncrest Lumber Co. v. N. C. Park Com., 30 F.2d 121. (3) The condemnation suit is the proper forum for the recovery of the damages sought. (a) The charter provides that the commissioners shall assess all the damages sustained as a result of the taking or damaging of private property. Such requirement simply follows the Constitution. St. Louis Charter, Art. XXI. (b) If the charter were more restrictive than the Constitution in defining the powers of the commissioners in assessing damages, the charter would be invalid. St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298. (c) The condemnation suit is still pending. In order to avoid a multiplicity of suits the claim for damages should be asserted therein. Arkansas Missouri Power Co. v. Killian, 40 S.W.2d 730; Gibbons v. Mo. Pac. Ry. Co., 40 Mo.App. 146. (d) It is proper for condemnation commissioners to consider the inconveniences to which the owner is subjected by the delay in the proceeding in finding the amount of compensation. Shoemaker v. United States, 147 U.S. 321. (e) If the claim for damages is not asserted in the condemnation suit, it is merged in the condemnation judgment and an independent suit to recover such damages (even for a tort) is barred on the ground of res adjudicata. Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935. (f) The circuit court is a court of general jurisdiction. Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935. (g) Condemnation commissioners are an arm of the circuit court. They perform the function of a jury in such proceedings. They can determine questions of fact arising on claims for such damages, as well as any other question of fact.

OPINION

Tipton, J.

This is an original proceeding in prohibition to prohibit the respondent, as one of the judges of the Circuit Court of the City of St. Louis, from issuing certain instructions to commissioners in a condemnation suit wherein the city of St. Louis sought to condemn various tracts of land for the widening of what is known as Twelfth Boulevard. The relator brought condemnation suit in the Circuit Court of the City of St. Louis on September 17, 1920, for the widening of this boulevard. The ordinance upon which the condemnation suit was based was passed on February 17, 1920. Relator filed an amended petition and on June 6, 1924, the circuit court appointed commissioners to assess benefits and damages and they filed a partial report of their proceedings on March 4, 1929. The final report was never filed. During the course of the proceedings various amending ordinances were passed relating to easements upon a limited portion of the properties affected. On March 30, 1931, a new ordinance was passed which radically changed the lines of the street. On July 21, 1931, the city filed another amended petition, incorporating the new ordinance.

Among the properties affected was that of the Poinsett Realty and Investment Company which it purchased in 1928. Under the original proceeding the city sought to condemn all the property now owned by the realty company at the northwest corner of High Street and Lucas Avenue. Under the last amended petition the only portion of this property sought to be completely appropriated was a strip fronting 4.73 feet on Lucas Avenue and 1.077 feet on the alley. After the last amended petition was filed the realty company was notified that the commissioners would sit again in the condemnation suit and it then filed in respondent's court a motion praying that the court instruct the commissioners to hear evidence to determine whether the said company had sustained damages as a result of the pendency of the condemnation proceeding. Among the items of damages which the realty company sought to prove to the...