State ex rel. Lumber Co. v. Bader
| Citation | 41 S.W.2d 168 |
| Decision Date | 30 June 1931 |
| Docket Number | No. 31018.,31018. |
| Court | United States State Supreme Court of Missouri |
| Parties | THE STATE EX REL. THOMAS & PROETZ LUMBER COMPANY and DESTREHAN REAL ESTATE COMPANY v. ARTHUR H. BADER, Judge of Circuit Court. |
Certiorari to Circuit Judge.
WRIT QUASHED.
Neuhoff & Millar for relators.
(1) The law of condemnation contemplates that the landowner shall not be divested of his property until the money value thereof has been ascertained by an award of commissioners and paid into court. Constitution, Art. 2, sec. 21; R.S. 1929, sec. 1342; State ex rel. Evens & Howard Fire Brick Co. v. Lubke, 15 Mo. App. 152. (2) The landowner in condemnation is entitled to his damages entirely in money and not partly in property or other things of value. R.S. 1929, sec. 1340 et seq.; Chicago, Santa Fe & C. Ry. Co. v. McGrew, 104 Mo. 299; Nichols on Emineut Domain (2 Ed.) sec. 205, p. 625; Elliot on Railroads (3 Ed.) sec. 1244; Fletcher v. Peck, 6 Cranch, 145, 3 L. Ed. 162; St. L.K. & N.W. Ry. Co. v. Clark, 121 Mo. 169; Sedalia v. Ry. Co., 17 Mo. App. 105; Elliot on Railroads (3 Ed.) 808, note 22. (3) While it is permissible to cut down the estate to be taken by the railroad, and thereby lessen the damages, this does not authorize the payment of damages by new and extraneous rights or privileges in lieu of money. Chicago, Santa Fe & C. Ry. Co. v. McGrew, 104 Mo. 282. The Clark case, relied on by Terminal Railway Company to justify its "reservations and conditions," is limited to reservations out of the estate taken. St. L.K. & N.W. Ry. Co. v. Clark, 121 Mo. 169. (4) The amended petition calls for a forced barter or exchange because the rights and privileges tendered the landowner were not carved out of his original estate in the land condemned. Chicago, Santa Fe & C. Ry. Co. v. McGrew, 104 Mo. 282; St. L.K. & N.W. Ry. Co. v. Clark, 121 Mo. 169. (5) The statutes do not authorize condemnation on condition, but condemnation must be of an unconditional estate. R.S. 1929, sec. 1340; In re Condemnation of Lands; Milwaukee Elec. Ry. & Light Co. v. Becker, 182 Wis. 182, 196 N.W. 575. (6) The plaintiff Terminal Railway Company is not authorized to condemn land for the use and benefit of the Chicago, Burlington & Quincy Railroad Company, who are not a party to the condemnation suit. R.S. 1929, sec. 1340 et seq. (7) The amended petition negatives jurisdiction in the circuit court because on its face (a) it purports to condemn by way of barter or exchange; (b) it purports to condemn conditionally; (c) it purports to condemn for the benefit of a railroad not a party, and jurisdiction does not attach to a proceeding where the petition shows on its face the absence of jurisdiction. State ex rel. Walker v. Dobson 135 Mo. 1; Chicago, etc., Railroad v. Young, 96 Mo. 39. (8) Certiorari will lie at the present state of proceedings. (a) The writ of certiorari is the same in Missouri as at common law. State ex rel. Ry. Co. v. Shelton, 154 Mo. 692; State ex rel. Teasdale v. Smith, 101 Mo. 174; State ex rel. v. Dobson, 135 Mo. 20. (b) Historically the use of certiorari before final judgment came first, and use after final judgment came later. Dissenting opinion in State ex rel. v. Shelton, 154 Mo. 670, 694; State ex rel. v. Dobson, 135 Mo. 19. (c) A condemnation suit differs from ordinary litigation in that the railroad acquires a vested interest as soon as the damages are paid into court upon the commissioners' report. R.S. 1929, sec. 1342; St. Louis I.M. & S. Ry. Co. v. Pfau, 212 Mo. 398. (d) The proceedings under the void petition have already resulted in unlawfully depriving the relators of possession and certiorari is the only adequate remedy. (c) Distinction must be made between two branches of the law of certiorari: 1st, It is true that certiorari in lieu of appeal lies only at the end of proceedings in the lower court. State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125, 2nd. But certiorari for want of jurisdiction will lie at any stage of the proceedings. State ex rel. Walker v. Dobson, 135 Mo. 1; Rector v. Price, 1 Mo. 198. (f) Total lack of jurisdiction of the court is never waived. Mississippi County v. Byrd. 319 Mo. 697, 4 S.W. (2d) 811.
R.I. Green and Anderson, Gilbert & Wolfort for respondent.
(1) The brief of relators admits that the original petition did not on its face negative jurisdiction. So the question here involved is whether attack can be made by certiorari, that the amended petition ousted jurisdiction obtained on the face of the original petition. (2) Certiorari does not pass upon the question as to whether the court below erred in its judgment in permitting the amended petition to be filed. State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. Kilhenny v. Danes, 288 S.W. 14; State ex rel. Amusement Co. v. Trimble, 318 Mo. 274; State ex rel. Manion v. Dawson, 284 Mo. 490; State ex rel. Wabash Railroad Co. v. Bland, 168 Mo. 1. (3) Certiorari will not lie except to a final judgment. State ex rel. v. Pearcy, 29 S.W. (2d) 83; State ex rel. v. Walbridge, 123 Mo. 524; State ex rel. v. Pfeffle, 220 Mo. App. 676; State ex rel. v. Court, 168 Mo. App. 29. This ruling has been specifically made in condemnation cases. State ex rel. v. Goodrich, 257 Mo. 41; State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125. (4) None of the questions sought to be raised by relators are jurisdictional; all relate to the amount of damages suffered by relators. The circuit court, on the trial by jury, has full jurisdiction to rule as to such measure of damages. Railway v. Railway, 94 Mo. 543. (5) If reservations in the petition were void as claimed by relators in the hearing before the jury, the jury would be instructed to disregard them in determining relators' damages. (6) The amended petition states a cause of action, but even if it did not, the matter would still be within the jurisdiction of the court; for if the petition states a case belonging to a general class over which the authority of the court extends, there is jurisdiction and the court has the power to decide on the merits of the pleading. Winningham v. Trueblood, 149 Mo. 572. (7) The condemning agent is not compelled to go to the full extent of the law, and is not compelled to condemn more than is required; reservations may be made to the property owner and in such cases the condemning agent is not bound to pay for the interest so reserved to the owner. St. Louis, Keokuk & Northwestern Ry. Co. v. Clark, 121 Mo. 194. And the condemning company by an offer in open court may bind itself to the performance of duties, and to the extent that such performance will prevent damages that would otherwise occur the condemning company may thereby breach a claim of the landowner for damages. The judgment in such case vests rights obtained by condemnation subject to the performance of such duties. St. Louis, Keokuk & Northwestern Ry. Co. v. Clark, 121 Mo. 198. (8) Certiorari considers only matters appearing on the face of the record. State ex rel. v. Clark, 9 S.W. (2d) 635.
Original proceeding in certiorari. Relators seek to have quashed the record of the proceedings in St. Louis Electric Terminal Railway Co. v. Thomas & Proetz Lumber Co. and Destrehan Real Estate Co., pending in the Circuit Court of St. Louis. They are defendants in that suit. The Terminal Company's road enters St. Louis from the east over the McKinley Bridge in North St. Louis. It is constructing an elevated railroad from the bridge southwardly to its station in the city. In furtherance thereof it filed the suit above mentioned to condemn a right of way over relators' lands fifty feet in width and lying east of and contiguous to the right of way of the Burlington Railroad over relators' lands. The original petition was conventional. Under it commissioners were appointed who proceeded with hearings on the question of damages. After one or more hearings, and before completion of their investigation, the Terminal Company filed an amended petition.
In that petition it seeks to condemn said fifty feet of land ...
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