City of Springfield v. Owen

WILLIAMS, C. In this suit the city of Springfield, a city of the third class, seeks, by the exercise of the right of eminent domain, to condemn a strip of land belonging to defendant, for the purpose of widening a street known as Grand avenue in said city. The strip of land sought to be condemned is 30' feet in width and approximately 1320 feet in length, containing approximately ten-elevenths of an acre of land and is located along the south edge of a tract of farm land owned by defendant. As the time of the passage of the ordinance providing for the condemnation of this land, and the fixing of the benefit district, and also at the time this suit was instituted in the circuit court, the southern limits of said city ran along the south edge of Girand avenue at this place. The benefit district, as fixed by the ordinance, was confined to land north of Grand avenue, taking in a strip about 3001 feet in width, including some of defendant’s land, together with approximately 501 smaller tracts or lots belonging to other persons. The affidavit of the publisher making proof of' the publication of the notice required by section 9263', Revised Statutes 1909, was as follows: “State of Missouri, “County of Greene. “H. S. Jewell, being duly sworn according to law, says that he is publisher of the Springfield Leader, a daily newspaper printed and published in the county of Greene, State aforesaid, and that the notice here [99] unto annexed was published in said paper for-weeks consecutively as follows: “First insertion 11th day of December, 1909. “Second insertion 10th day of January, 19101. “H. S. Jewell, Publisher” And duly sworn to. Defendant was served with summons and appeared and filed answer and also motion to dismiss the action. Later the circuit court appointed three commissioners to assess the benefits and damages in the cause. Said commissioners made report finding the value of the land taken to be $880 and her benefits to be $518. And also assessed benefits against 50 tracts of land owned by other persons, at from $2 to $15 each, totaling $282. Defendant filed exceptions to the commissioners’ report and later a trial was had in the circuit court, before a jury, resulting in a judgment in favor of the defendant for the sum of $300-. Thereupon defendant duly perfected an appeal to this court. Condemnation: City of Third class: Notice. I. It is contended by appellant that the circuit court was without jurisdiction to try this cause for the reason that the record shows that the notice required by section 9263, Eevised Statutes 1909, “to all persons to whom it may concern” was published only twice, whereas the statute requires that said notice be published for “four weeks consecutively.” In support of this contention, appellant cites authorities holding that only by strict compliance with the statutory requirements can the right of eminent domain, a right purely statutory and in derogation of common law, be exercised. That this rule of law is well settled in this State there can be no dispute. But does that rule of law aid appellant in the present case? In other words, does the above rule apply to the present facts? In this, as in the great majority of cases decided by ap [100] pellate courts, the difficult task is not to determine or discover abstract principles of law but rather to determine what particular rule of law is evoked by the given facts. In the present case appellant, the only necessary party defendant to the condemnation proceedings, was duly served with summons, appeared and filed answer and contested in the circuit court every step of the proceedings upon the merits. And upon finding herself aggrieved by the result of said trial brings the ease here for review and asks that the judgment be reversed and the cause remanded because the persons owning land in the benefit district were not notified as required by the statute. A review of the authorities requiring strict compliance with the statute will, in nearly every instance, disclose that the irregularity held to be fatal to the validity of the proceedings was the failure to perform some statutory requirement which was an essential prerequisite to establish the court’s right or authority to proceed against the right of the person complaining of such irregularity. Here we have no complaint from the persons- for whose especial benefit the statutory requirement as to publication was made. If those persons- were -here raising the question that said statutory notice had not been given, and it should appear that they had not waived the want of notice by having generally appeared to the proceedings below (City of Tarkio v. Clark, 186 Mo. 285, l. c. 298), then it might well be said that as to that issue, to-wit, the issue concerning the assessment against them, there could be little doubt but that the assessment was void for the reason that failure of sufficient publication of the notice would leave the court without jurisdiction to adjudicate the matter. But that issue is not here presented. In the present case there can be no doubt but that the court acquired jurisdiction over the person of the appellant by the service of summons and also [101] by the further fact that appellant appeared and filed answer. We are also of the opinion that the court acquired jurisdiction of the subject-matter, when, after all necessary preliminary steps were properly taken by the city council, the condemnation petition, in due and proper form, was filed in the circuit court. And thus having jurisdiction over the subject-matter and over the person of the appellant, should the action of the court in dealing with that person and subject-matter be set aside because of irregularities which might withhold the jurisdiction of the court to proceed against the property of others? We think not. The proceeding to assess benefits against the property in the benefit district is in its nature collateral to the main issue having to do with the condemnation of appellant’s land. It is collateral in that it does not affect in any manner the condemnation of the land which is. the main branch of the litigation. Whether the assessment of benefits is void or valid, it cannot affect the rights of appellant, because appellant is to receive her compensation directly from, the city and the city is not to acquire any title, nor even the possession of the condemned strip until it pays appellant the amount of compensation fixed by the court. [Sec. 9269, 9271, R. S. 1909; Art. 2, sec. 21, Constitution of Missouri.] The great weight of authority is to the effect that in condemnation proceedings the general rule prevails that “the proceedings will be valid as to those having notice and invalid as to those not notified.” [2 Lewis Eminent Domain, par. 586; Mills on Eminent Domain, par. 95; 1 Elliott on Roads and Streets, par. 358; Town of Tyrone v. Burns, 102 Minn. 318; Ross v. Board of Supervisors, 128 Iowa, 427, l. c. 434.] We do not undertake in any manner to say that the above general rule should be applied in all cases but leave that question open to be determined as the single instances may arise. However, we have no hesi [102] tancy in saying that it .should be applied where, as here, the issues involving the rights of those not notified do not in any manner involve or affect the rights of those duly notified. II. It is further contended that the compensation compensation, fixed by the jury was grossly inadequate. With reference to this point, it is sufficient to say that the evidence was conflicting. Some of the witnesses testified that the benefits accruing to appellant by reason of the proposed improvement were equal to the value of the land taken. Other witnesses fixed the amount approximately as allowed by the jury. Others fixed the compensation higher. Under such conditions, we cannot say that the compensation allowed was grossly inadequate and therefore will not interfere with the amount allowed by the jury. [St. Louis v. Calhoun, 222 Mo. 44, l. c. 55, and cases therein cited.] Instructions. III. It is contended that the court erred in refusing defendant’s instruction which informed the jury that if they “should find that land south of Grand avenue abutting thereon is benefited by the opening or widening of the street they should not assess any of such benefits against the land of defendant. ’ ’ Without passing upon the question as to whether or not under the evidence in this case appellant was entitled to the above instruction, it is a sufficient answer to appellant’s contention to say that the court in an instruction given on its own motion did tell the jury, in effect, that benefits accruing to land south of the proposed improvement should not be considered by them in arriving at appellant’s compensation. [103] Fixing Benefit Property Outside City Limits. IY. It is further contended that the property south of the proposed improvement should have been assessed with benefits an(l that the failure to-assess such land made the benefits assessed against defendant’s land higher than they otherwise would have been. The property south of the proposed improvement was not included in the benefit district as defined by the city council, and therefore was not subject to assessment. Furthermore, at the time the city council fixed the benefit district, the land south of the proposed improvement was outside of the territorial limits of said city and it is difficult to conceive how it could have been lawfully included therein. [104] Delegation of Legislative Power to City Council, [103] Appellant relies upon the case of St. Joseph v. Crowther, 142 Mo. 155. An examination of that case discloses the fact that the land which was not properly assessed with its just portion of the benefits was within the benefit district as fixed by the city council, and hence the case is not in point. Appellant contends, however, that since the land south of the improvement was later (the exact.date is not given) brought into the city limits by enlargement of the city territory, section 9266, Revised Statutes 1909, “provides for just such an emergency by adding the mandatory power, after the filing of exceptions to the report of the commissioners, that ‘the courts shall thereupon make such order as right and justice may require, and may order a new appraisement on good cause shown.’ ” Just what order the court should have made in the present case, but failed to make, appellant does not undertake to say. But it is clearly apparent that said section does not vest the circuit court with power to make a new benefit district. That power, being a legislative function, is, by delegation of legislative authority, [104] vested in the city council. [Sec. 9262, R. S. 1909.] In executing this power the municipality may exercise a broad discretion and, absent fraud, arbitrary action, or “demonstrable mistake,” the courts will not interfere. [5 McQuillin, Municipal Corporations, par. 2052.] It is not contended that the benefit district in the present case was the result of any of the above-named invalidating agencies. V. It is contended that the court erred: (a) in refusing to permit defendant to show that the street when widened would not be of “uniform width;” (b) in permitting plaintiff to ask and witness to answer, over the objection of defendant, the question, “Would it be a very great advantage to have this platted that way and the south side of the addition to be up against a blind alley?” Upon an examination of the record as to point a, we find that the court did permit defendant to show that a portion of Grand avenue was 80 feet in width" and that at the place where it was proposed to be widened it would be 60 feet. From those facts the jury could readily discover that the street would not be of uniform, width. Objections to Evidence. With reference to point b, the record discloses that when the question was asked, defendant’s counsel said: “Question objected to.” The court overruled the objection and defendant saved an exception. The above objection failed to specify the ground of objection and therefore raised no point for appellate review. [Williams v. Williams, 259 Mo. 242, and cases therein cited.] The judgment is affirmed. Boy, C., concurs. PER CURIAM. The foregoing opinion of Wix. imams, C., is adopted as 'the opinion of the court. All the judges concur.