Lester Real Estate Co. v. City of St. Louis

70 S.W. 151, 170 Mo. 31, 1902 Mo. LEXIS 37

Opinion

BURGESS, J.

This action is to recover the sum of three thousand dollars from the city for fees of attorneys alleged to have been necessarily expended by plaintiff in the defense of a proceeding brought by said defendant city in the circuit court of the city of St. Louis, for the purpose of condemning plaintiff’s real estate for widening a street, which said proceeding was ' dismissed by the city, and the costs adjudged against it.

Defendant interposed a demurrer to the petition upon the ground that it failed to state a cause of action. The demurrer was sustained, and final judgment rendered for defendant thereon, from which plaintiff appeals.

Under its charter the city of St. Louis (article 6, section 9) may dismiss and withdraw legal proceedings for the condemnation of private property for public use at any time before final judgment on the payment of costs, and in this respect differs from such a proceeding by other .public corporations authorized under their charters to condemn real estate for public use, and is only liable for counsel fees when it is alleged and made to appear that such proceedings “are needlessly, wrongfully and vexatiously continued by the city, against the protest of the landowner, when it is in the power of the city to dismiss and avoid the injury to him.” There is no such averment in the petition in this case or anything tantamount thereto. The demurrer was properly sustained. [St. Louis Brewing Assn. v. City of St. Louis, 168 Mo. 37.]

The judgment is affirmed.

All concur.