Whyte v. City of Kansas

Ellison, J. The law is against .plaintiff’s ease, for the reason that the facts are against Mm. if the city had [414] ■done any of the acts charged against it, I agree it would 1 be liable. If it had inflicted irreparable and permanent injury, or converted the property to the public use, an action would accrue to plaintiff, especially under our constitution,'which has added the words “or damaged,” to the clause forbidding the taking of private property for public use without compensation. The authorities cited by plaintiff unquestionably sustained his position. The word “taking” should be liberally construed. “It would,” as is said by Judge Miller in Pvmpelly v. Green Bay Company (18 Wall. 177), “be a very curious and ■unsatisfactory result, if, in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, * * * it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowest sense of that word, it is not taken for public use.” But has the defendant done any of these things % It has only passed an ordinance preliminary to the taking • of the property, this and nothing more. Conceding the assistant city engineer to have assumed to be acting in his official capacity when he notified plaintiff, it counts for nothing in this case. The ordinance had not yet been passed, and I know of no right in the engineer to notify property holders of what ordinances will be passed by the council. But this alleged notice was a mere conversation, in which the engineer gave expression to his opinion of what the action of the council would be. The plaintiff has been the active agent in this difficulty, the defendant has been passive. The plaintiff has ' set his property back and has thrown the four feet of ground into the sidewalk area. The city has not demanded it of him, and has - taken no part with him in it. [415] As I have said, the city stopped at the passage of the ordinance ; it might have proceeded much further in the process of condemnation, and yet not been liable to damages, nor fallen under the authorities cited for plaintiff. There is matter for the council to pass upon at the very end of the condemnation proceeding, in its nature judicial, which may put an end to the proceeding and leave the parties statu quo, which is the amount of damages that have been assessed. The council have, in reserve, the power to determine that the public good to be subserved from the appropriation of private property in a given instance, is not commensurate with the damages awarded. “A long series of decisions,” says Sapallo, J., “has established that in these street cases the corporation may be permitted to discontinue the proceedings at any time before rights resulting therefrom have become vested in the property owners. They further hold, differing, in this respect, from the English cases, that no such rights are vested until the report of the commissioners is finally confirmed and there is a final award, in the nature of a judgment, in favor of the property owners for their compensation.” In re Washington Park, 56 N. Y, 145, 153. And the rule is thus forcibly stated by Mr. Justice Schofield: ££ The rights of the parties are correlative and have a reciprocal relation, the existence of the one depending on the existence of the other. When the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation.” Chicago v. Barbian, 80 Ill. 482, 487. “The right to the compensation is complete when the right of the public is complete.” Harrington v. Commissioners, 22 Pick. 268. The principles announced and maintained by the preceding quotations, are also supported by the decisions of the courts of this state. “I have no doubt,” said Wagner, J., “that the city may dismiss its proceedings at any time before final judgment, * * * and then the only liability that would be incurred would be the [416] expenses. So, if on account of excessive damages, it should be deemed unwise or impolitic to proceed, it might abandon the work. * * * If the city elects to abandon the enterprise, and not to take the property, there is no divestiture of title from the owner, and he is not entitled to pay from the public.” City of St. Joseph v. Hamilton, 48 Mo. 282. This case was afterwards affirmed in State ex rel. Rogers v. Hug, 44 Mo. 116. I am of the opinion the plaintiff has no cause of action, and the judgment, with the concurrence of the other judges, will be reversed.