Owen v. City of Springfield

BIGGS, J. In 1895, tbe defendant instituted proceedings against the plaintiff to condemn a strip of land for public use. Tbe matter reached tbe circuit court on appeal, where, after several mistrials, tbe proceeding was dismissed by the court. No appeal was taken from the judgment of dismissal. Tbe present action is to recover the expenses incurred by plaintiff in defending tbe action. It was agreed at tbe trial that if plaintiff was entitled to recover anything her damages should be assessed at tbe sum of one hundred and twenty-five dollars. 'The cause was submitted to the' court without a jury. The judgment was for the plaintiff for tbe stipulated amount, and tbe defendant has appealed. It is conceded by counsel for appellant that if tbe dismissal of tbe condemnation proceedings bad been voluntary tbe right of plaintiff t to recover tbe amount legitimately expended by her in defending the action would be unquestioned. But a recovery is contested on the ground that tbe dismissal was tbe result of tbe judgment of tbe court. "We have been unable to appreciate tbe distinction which counsel urge. It is true that in all of tbe reported cases in this state tbe proceedings of condemnation were voluntarily abandoned, but in these cases tbe liability of the corporations were not predicated [560] on that fact. The reason for the rule is that the power conferred by the state upon a corporation to appropriate private property for public usé is an extraordinary power, and that such a high prerogative is only allowed “where the plain letter of the law permits it and under a careful observance of the formalities prescribed for the owner’s protection,” Oooley Const. Lim., 651. Therefore the reported cases in this state have declared the rule that if such a proceeding is abandoned the corporation must answer to 'the landowner for the damages sustained in defending it. St. Louis Railway Company v. Railroad, 138 Mo. 591; Leisse v. Railroad, 2 Mo. App. 105; Simpson v. Railroad, 111 Mo. 231; Gibbons v. Railroad, 40 Mo. App. 146. If the corporation is answerable in case of voluntary abandonment, why should it not be held if the court should rule that the action had been improvidently instituted? In either case the landowner has been damaged through the act of the corporation. The judgment of the circuit court will be affirmed. All concur.