City of Kansas v. Hill

80 Mo. 523
CourtSupreme Court of Missouri
DecidedOctober 15, 1883
StatusPublished
Cited by19 cases

This text of 80 Mo. 523 (City of Kansas v. Hill) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Kansas v. Hill, 80 Mo. 523 (Mo. 1883).

Opinion

Ray, J.

This is a proceeding begun by the City of Kansas, before the mayor of said city, under and in pursuance to its charter, (sections 1 to 6, inclusive, Acts of [526]*5261875, pp. 244, 249,) to condemn and appropriate certain real estate therein mentioned, to the use of the city for street purposes, and to extend Eighth street in said city from the west line of Delaware street to the cast line of Wyandotte street, a distance of several hundred feet, and thereby connect the east and west ends of said street already opened, and thus render the same continuous, and to make just compensation therefor.- The city ordinance passed for that purpose is as follows:

No. 19,350.

An ordinance to amend an ordinance to open and extend Eighth street from Delaware street to Wyandotte street.

Be it ordained by the Common Council of the City of Kansas:

Section 1. That an ordinance No. 19,143, entitled “ An ordinance to open an extend Eighth street from Delaware street to Wyandotte street,” approved April 1st, 1880; be and the same is hereby amended so as to read as follows, to-wit: Beginning at the intersection of the south line ox T. Ii. Swope’s second addition to Kansas City with the west line of Delaware street, thence w.est along the south line of said T. H. Swope’s second addition to the east line of Wy-andotte street, thence south sixty (60) feet; thence east and parallel with the south line of said Swope’s second addition to the west line of Delaware street; thence northwardly sixty and six-tenths (60 6-10) feet to beginning, and all private property within said boundaries is hereby condemned for public use as a street, and just compensation thei’efor shall be assessed, collected and paid according to law.

Section 2. The common council hereby determines and prescribes the limits within which private property shall be deemed benefited by reason of the proposed improvement mentioned in the preceeding section, and be assessed and charged to pay .just compensation therefor as follows, to-wit; Beginning at a point on the west [527]*527line . of Walnut street one hundred and twenty-three (123) feet north of the north line of Eighth street; thence west to a point on the east line of Broadway street one hundred and nineteen (119) feet north of the north line of Eighth street; thence south three hundred and twenty-nine (329) feet; thence east to a point on the west line of "Walnut street one hundred and forty-six (146) feet south of the south line of Eighth street; thence north three hundred and twenty-nine (329) feet to the beginning.

Section 8. That the sum of $100 be, and the same is hereby appropriated out of the general fund to pay the costs and expenses of the proceedings necessary to condemn the private property so to be taken, and a part of such sum as may be assessed against the city of Kansas as benefits to the city and public generally by reason of opening and extending said street.

Approved May 4th, 1880.

O. A. Chace, Mayor.

Attest, V. D. Callahan, City Clerk. (Seal).

A map accompanying the proceedings, sets forth and exhibits the land to be taken, and the limits within which, “ benefits ” are to be assessed, to raise the money to pay for the same.

It seems there were eight or nine separate parcels of land sought to he taken and condemned, owned by about as many several parties; and about ninety or more separate and distinct parcels of land subject to be assessed with “benefits,” to raise the money to pay for the land so taken, and some hundreds of persons interested in the lands subject to be assessed with benefits, all of whom, are made parties defendants in the proceeding.

Such proceedings under the charter were had as resulted in a verdict from which an appeal was taken to the circuit court, where on a trial anew, before a jury of six men, there was a verdict and judgment from which the two Hidings on the one part, and said Swope on the other. [528]*528have made separate appeals and thus brought the case here for review.

To this end separate “ agreed statements,” under rule 20 of this court, were made between these appellants, the. Hidings and said Swope on the one side, and the City of Kansas the plaintiff on the other, showing the cause of action, the defence and the evidence together with the rulings of the court thereon, and the exceptions saved to said rulings; which statements under said rule are here to be treated as the records in said respective appeals, and the causes therein considered and adjudged accordingly. By agreement in this court these two appeals or causes were argued and submitted together, and for convenience will in like manner be considered and determined together in one opinion.

The “ agreed statement ” in the Swope appeal, as far as material is as follows : The first exceptions saved were as follows:

“ The cause coming on to be heard, it appeared that the judge of the court has chosen the following named persons as jurors in this case (here follow six names.) At this point defendant, Thos. H. Swope, objected to the jury because it consisted of but six men, and at the same time requested a jury of twelve men, but the court overruled his objection and denied his request, to which action of .the court said defendant at the time excepted. Upon examination under oath, said jurors testified that they owned real estate and were freeholders in the City of Kansas, but had no interest in any real estate covered by this proceeding, at which point defendant, T. H. Swope, objected to the jury on the ground that they were not disinterested, but were directly interested, inasmuch as it would be to their interest to assess as little benefits as possible against the city, they and their property having to pay a portion of the same, which objection the court overruled, to which action of the court in so overruling said objection defends ant, T. IT. Swope, at the time excepted.”

[529]*529On the question of the benefit to the city, by the proposed improvements, all witnesses swore it would be of some benefit. One swore it would not be large. The city engineer testified that one-tenth of the benefits should be assessed against the city. Six witnesses fixed it at from five per cent to thirty per cent. Witnesses were introduced to prove the value of the ground proposed to be taken.

On cross-examination defendant, Swope, asked the following question: “Does not the fact that the real estate proposed to be taken lies, and has lain for a great many years in the line of Eighth street and between the east and west parts of said street already opened diminish the value thereof ?”

The owners of said real estate objected to the question, to which action of the court defendant at the time excepted. Reference is here made to the map with the transcript in this court. It shews the ground taken to be a strip of ground between two portions of Eighth street, the object of the condemnation being to make a continuous street.

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Bluebook (online)
80 Mo. 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-kansas-v-hill-mo-1883.