June 11, 1930.
1. CONDEMNATION: Strict Compliance. It is essential in a condemnation proceeding that every legislative requirement, whether state or municipal, be strictly complied with.
2. ____: Trial by Jury: Constitutional Right. The right of trial by jury in a condemnation case brought by a municipality did not exist at common law, and such right was limited by the provision of the Constitution that "the right of trial by jury, as heretofore enjoyed, shall remain inviolate," and the statute (Sec. 8679, R.S. 1919) declaring that "any party shall be entitled to have damages assessed by a trial by jury as at common law" likewise limited the right, and did not confer it where it did not exist at common law.
3. CONDEMNATION: Trial by Jury: Constitutional Right: Incorporated Company: City. The words "incorporated company" used in the Constitution (Art. 12, sec. 4) declaring that "the right of trial by jury shall be held inviolate in all trials of claims for compensation when in the exercise of said right of eminent domain, any incorporated company shall be interested," do not mean a municipal corporation, but only a business corporation, and the provision does not apply in a proceeding brought by the city to condemn land for public uses, and does not confer the right of trial by jury in such a case.
4. ____: ____: Statutory Right. Section 8752, Revised Statutes 1919, is limited in its application to cities having more than 10,000 and less than 30,000 inhabitants and having special charters. It does not confer the right of trial by jury in a condemnation proceeding brought by the city of St. Louis.
5. ____: Damages: Inadequacy of Award: No Substantial Evidence. This court has power on appeal to reverse a judgment in a condemnation case in which the award of damages is not supported by substantial evidence; and where an examination of the evidence shows that the damage awarded by the commissioners was materially less than the amount fixed by any witness, and materially less than the average fixed by all the witnesses, and is far less per front foot than the value of other property forming parts of the same tract and subject to a like extent of condemnation, the evidence to support the award is not substantial.
6. ____: ____: Sidewalk: Permissive Use. Testimony to show a diminution in the rental value of property taken by the city in a proceeding to open or widen a street, by reason of the use of an adjacent sidewalk in the owner's business, is irrelevant, and cannot be used to determine the market value of the property, since the use of the sidewalk is purely permissive.
7. ____: ____: Market Value. An instruction defining the market value of property taken in a condemnation case as "that sum which the exceptor could obtain if he wanted to sell it, but was not forced or compelled to sell, from one who wanted to buy it, but was not compelled to buy," is not erroneous.
8. ____: ____: Testimony of Commissioner. In trying exceptions to the commissioners' report in a condemnation case, the fact that a witness was one of the commissioners who assessed the damages should not be permitted to go to the jury.
Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.
REVERSED AND REMANDED.
R.M. Nichols for appellants.
(1) This is not an action in the sense of the common law, but a special proceeding, and the complete record of the case having been brought to this court by the appeal, all questions affecting the substantial rights of the parties should be considered by the court; the trial upon appeal is in effect de novo. Sedalia v. Ry. Co., 17 Mo. App. 105; St. Joe Term. Railroad Co. v. Railroad Co., 94 Mo. 535; Schmied v. Keeney, 72 Ind. 309; Hooker v. Railroad Co., 65 Vt. 47; Wooster v. Railroad Co., 57 Wis. 311; Peninsular Railroad Co. v. Howard, 20 Mich. 18. (2) The court erred in its refusal to summon the jury to try and determine the value of the appellant's property. Sec. 21, Art. 2, Mo. Constitution; Secs. 8679, 8752, R.S. 1919; S.M. A. Railroad Co. v. Woodward, 193 Mo. 659; Bates v. Comstock, 306 Mo. 327; Chicago etc. Railroad Co. v. Miller, 106 Mo. 458; Chicago etc. Railroad Co. v. Townsite Co., 103 Mo. 469; Drainage Dist. v. Campbell, 154 Mo. 151; Railroad Co. v. Realty Inv. Co., 205 Mo. 167; Tarkio Drainage Dist. v. Richardson, 237 Mo. 49; Kansas City v. Smith, 238 Mo. 323. (3) The market value was established by a preponderance of evidence of eight witnesses, whose evidence in a general average, showed that the property was worth over $24,000. The testimony of plaintiff's witness showed that the property was worth $10,000 — $1,500 more than the Commission allowed. There can be no doubt but that appellants were not allowed more than one-third of the value of their property, and this fact is reinforced by the subsequent Commission increasing the award to the Scott estate — a piece of property of half the dimensions — in the sum of $4,500. (4) The testimony of the diminution of the rental value of the property by reason of the use of the sidewalk by the abutting property owners was error, because abutting property owners have a vested right in a sidewalk in the prosecution of their business, which right is not a mere license revocable at the pleasure of the public. Schopp v. St. Louis, 117 Mo. 131; DeGeofroy v. Merch. B.T. Co., 179 Mo. 698. (5) The court erred in allowing the commissioner, in answer to the question as to the "award of the commissioners" on the Smith property, that "the award on the land is $4,500 and the improvements, $4,000 or a total award of $8,500." The report was not admissible, and the verbal statement of the commissioner as to its contents was not admissible. Railroad v. Second St. Imp. Co., 256 Mo. 286; School District v. Phoenix etc. Co., 297 Mo. 332. (6) Instruction 2, in behalf of respondent, was erroneous, because there was no testimony which would justify the court in declaring the law as stated in said instruction, that "the market value is the sum which the exceptor would obtain if he wanted to sell it, but was not forced or compelled to sell, from one who wanted to buy it but was not compelled to buy." There was no evidence of an offer to sell or an offer to buy, and if such evidence had been offered it would have been excluded, as it was when Mr. Smith offered to testify. W.U. Tel. Co. v. Ring, 5 Am. Eng. Annot. Cases, 97. Julius T. Muench, G. Wm. Senn and J.B. Steiner for respondent.
(1) In the absence of fraud, mistake, prejudice or passion, manifested in the rendering of the verdict, this court will not interfere with the ruling of the trial court by weighing the evidence. St. Louis v. Lanigan, 97 Mo. 175; St. Louis v. Calhoun, 222 Mo. 44; Cape Girardeau v. Dennis, 67 Mo. 438; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663; St. Louis v. Brown, 155 Mo. 545, 567; St. Louis v. Abeln, 170 Mo. 318; St. Louis v. Railway, 272 Mo. 80; Doyle v. Railway, 113 Mo. 280; Ry. v. Knapp-Stout Co., 160 Mo. 396. (2) The trial court properly denied the appellants' trial by jury in the trial of exceptions to the commissioner's report. Missouri Constitution, art. 12, sec. 4; Kansas City v. Smart, 128 Mo. 272; Kansas City v. Vineyard, 128 Mo. 75; St. Louis v. Roe, 184 Mo. 324; Kansas City v. Smith, 238 Mo. 323; 20 C.J. 999, sec. 396; Charter of St. Louis, art. 221, sec. 3; Kansas City v. Marsh Oil Co., 140 Mo. 470; Brunn v. Kansas City, 216 Mo. 108; State ex rel. Graham v. Seehorn, 246 Mo. 557; State ex rel. Kansas City v. Lucas, 317 Mo. 255; Albany v. Gilbert, 144 Mo. 224; State ex rel. v. Field, 99 Mo. 352; St. Joseph v. Geiwitz, 148 Mo. 210. (3) The fact that the appellants have the right of ingress and egress in and upon public sidewalks abutting on said property does not give them the right to use the sidewalks for storage and for the transaction of business on said public sidewalk. The abutting owner cannot acquire vested rights in the public sidewalk by adverse user. St. Louis v. Railway, 114 Mo. 13; Columbia v. Bright, 179 Mo. 441; State ex rel. v. Vandalia, 119 Mo. App. 423; Hurst v. Dulaney, 84 Va. 701; McKinney v. Nashville, 102 Tenn. 131; Clapp v. Boston, 133 Mass. 367; In re Low, 233 N.Y. 334, 135 N.E. 521; Stapenhorst v. St. Louis, 229 S.W. 754; Julia Building Assn. v. Telephone Co., 88 Mo. 258; Cartwright v. Telephone Co., 205 Mo. 126; St. Louis Charter, art. 8, sec. 5, par. b. (4) In the hearing by the trial court of the exceptions to the report of commissioners in condemnation proceedings, the commissioners are competent witnesses. St. Louis v. Abeln, 170 Mo. 318.
This suit is brought by the city of St. Louis against the owners of certain property in that city, including that of the appellants, to condemn their property under the provisions of Section 31107 of the ordinances of said city, authorizing the condemnation of private property for public use, for the purpose of opening and widening Franklin Avenue as a public street.
In conformity with the course prescribed by our procedure in cases of this character, aside from the objections to their regularity urged by the appellants, which we will discuss later, the commissioners appointed by the court awarded damages to Henry M. Smith in the sum of $8,500 for the taking of his entire property on Fourth Street. Upon his subsequent death during these proceedings, his wife, who was the executrix of his estate, was made a party defendant. As his legal representative, together with his heirs, who were also made parties, an appeal was taken to this court from the judgment rendered on said award. The property involved in this suit is a triangular strip of ground fronting on Fourth Street and running through to Third Street. The base of this triangle was owned by the Schopp estate. It has an area on its base of 41 feet and 8 inches on Franklin Avenue, 62½ feet on Fourth Street and 66 feet on Third Street. Adjoining it on the north is a piece of property owned by the Scott estate, having a frontage of 25 feet on the east line, or Fourth Street, by a depth on its south line of 25 feet and 6½ inches, and on its north line of 16 feet and 3½ inches, and a frontage on Third Street of 25 feet and 5 inches. The apex of this triangle was owned by Henry M. Smith. It had a frontage of 56 feet and 6 inches on Fourth Street, and a width on the southern line, or the line adjoining the Scott estate, of 16 feet and 5 inches, and on Third Street a frontage of 59 feet and 8¾ inches, running to a point upon the north line. The following map more clearly indicates the location of this property.
We are only concerned here with that portion of the property owned by the Smith estate. Without otherwise disposing of the motion of the respondents to strike out certain portions of the appellants' abstract, it will suffice to say that the irrelevant portions of the same will be disregarded.
The issues are sufficiently set forth in the appellants' assignment of errors to enable a clear understanding to be had of the matters in controversy. These assignments are as follows:
1. The court erred in overruling appellants' motion for a jury to hear and determine damages sustained upon the exceptions filed to the commissioners' report.
2. The court erred in overruling appellants' exceptions to the report of the commissioners as to the market value of appellants' property shown by a preponderance of the testimony.
3. The court erred in admitting testimony as to the diminution of the rental value of appellants' property by reason of the claimed permissive use of the sidewalk in appellants' business.
4. The court erred in giving Instruction 2, at the instance of respondent, for the reason that no testimony was offered and none admitted, as to the method described in said instruction for ascertaining the market value of appellants' property.
5. The court erred in overruling appellants' objection and exception to the testimony of John C. Greulich as to what the award of the commissioners showed.
6. The court erred in striking out the testimony of R.C. Buchanan, upon the ground that his testimony as to the value of the property was based upon its rental income, when his testimony showed that he was acquainted with the property and knew its market value.
I. This is a proceeding under the law of eminent domain. An essential to the proper exercise of the rights granted by this law is that every legislative requirement, whether Strict it be by the state or a municipality, must be Compliance. strictly complied with. [State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490.]
II. The first contention of the appellants is that an essential to the proper exercise of the respondent's right to condemn their property was denied by the trial court in refusing to grant them a trial by jury to hear and determine the Trial by Jury: damages sustained by the award of the Constitutional Right. commissioners and the judgment rendered thereon. There is a familiar provision of our State Constitution to the effect:
"That private property shall not be taken or damaged for public use without just compensation. Such a compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law," etc. [Art. 2, Sec. 21, Const. Mo.]
It will be seen that the general terms employed in the foregoing constitutional provision are limited "to the manner prescribed by law." Legislative action, under this provision, has found expression in two sections of the Revised Statutes of 1919, viz; Sections 8679 and 8752. Section 8679, after prescribing the procedure upon the report of the commissioners, provides that "any party shall be entitled to have the damages assessed by a trial by jury as at common law, upon claiming the right in the exceptions to the report of the commissioners."
This section, while otherwise general in its terms, limits the right of a trial by jury to cases in which that right was given under the common law. This limitation is, therefore, in harmony with the constitutional provision (Sec. 28, Art. 2), to the effect that "the right of trial by jury, as heretofore enjoyed, shall remain inviolate." [Bates v. Comstock Realty Co., 306 Mo. 328; Eckrich v. St. Louis Tr. Co., 176 Mo. 621, 648.]
In Hickox v. McKinley, 311 Mo. l.c. 242, the constitutional provision is construed, in the light of numerous rulings of this court, to the effect, that: "If the right to a jury trial exists it is by virtue of the Constitution in force at the time, whether it be that of 1820 or 1865, which merely guaranteed the continuance of the common law right and that right the Constitution of 1875 preserves but does not extend." [State v. Hamey, 168 Mo. 167; State ex rel. Ry. v. Withrow, 133 Mo. 500.] However, at the common law the right of trial by a jury in condemnation proceedings by a municipal corporation did not exist. [St. Joseph v. Geiwitz, 148 Mo. 210, 216.] It follows, therefore, that the plaintiffs' claim to the right of a trial by jury, under the facts in this case, has not been conferred by Section 8679, supra.
A subsequent constitutional provision has been invoked in cases of this character as conferring the right to a trial by jury upon the parties thereto. This provision (Sec. 4, Art. 12), so far as it relates to the exercise of the right of eminent domain, is as follows: "The right of trial by jury shall be held inviolate in all trials of claims for compensation when in the exercise of said right of eminent domain, any incorporated company shall be interested, either for or against the exercise of said right."
In Kansas City v. Vineyard, 128 Mo. 75, which was a proceeding by that city to condemn private property for the purpose of extending one of its streets, it was held that a municipal corporation was not an incorporated company within the meaning of the above constitutional provision, and conferred no right upon a person whose land was sought to be condemned for the extension of the street, to a trial by a jury on the question of damages, citing cases. The Vineyard case defines clearly the distinguishing differences between a business corporation and a municipal corporation, the gist of which is that the former is one organized for the purpose of carrying on a business for profit; while the latter is organized with political and legislative powers for the local civil government and police regulation of the people of a particular district included within its boundaries; and that it is a subordinate branch of the domestic government of a state. [Heller v. Stremmel, 52 Mo. 312; Mayor v. Ray, 19 Wall. 475.] Thus differentiated, to which are added other reasons, not necessary to be set forth here, a municipal corporation is held not to be included in the constitutional provision.
III. It is further contended that the plaintiff was entitled to a jury trial under the provisions of Section 8752, Revised Statutes 1919. This Section is limited in its application to cities having more than 10,000 and less than 30,000 Statute Applicable population, which have special charters. to Cities. [Secs. 8741-8757.] Hence a right to a trial by jury was not authorized under Section 8752, supra. In passing it is not irrelevant to say that the ruling in City of St. Louis v. Worthington (Mo.), 19 S.W.2d 1066, is in error which implies that in an eminent domain proceeding in the City of St. Louis a trial by jury is authorized.
IV. Appellants assign error in the overruling of their exceptions to the value placed on their property by the award of the commissioners and confirmed by the judgment rendered thereon. The inadequacy of the award, based on a Inadequate Damages: fair market value of the property, is No Substantial Evidence. the basis of the contention. While it is true that an award will not be set aside on account of an adverse preponderance of the testimony, provided there is substantial evidence in its support, it remains to be determined in this as in other cases of like character, whether in view of all of the facts, such evidence has been adduced. In its absence the discretionary power of the appellate court exists to reverse a judgment on an inadequate award, despite the general rule on non-interference, based on the weight of the evidence. [City of St. Louis v. Worthington (Mo.), 19 S.W.2d 1066; Devine v. St. Louis, 257 Mo. 470, 475; Bank v. Wood, 124 Mo. 72, 76.] The aggregate value of the Smith property, as fixed by six of these witnesses, was $146,500, which results in an average valuation by each of more than $24,000. The total valuation fixed by the other two witnesses was $18,000, or an average valuation by each of $9,000. If a general average of the valuation of each of these eight witnesses be deduced from a total of all of their testimony, it will show an individual valuation by each of more than $20,000. This conclusion, while it may be lacking in probative force to fix the valuation of the property for the purpose of condemnation, is not only persuasive but ample to demonstrate the truth of the fact that the award of the commissioners is inadequate, not alone on the ground of a preponderance of adverse testimony, but because there is no substantial evidence to sustain it. Further cogency is given to this conclusion by a comparison of the award here in question with the valuations fixed by the commissioners, upon the Schopp and Scott properties, forming parts of the triangle shown in the plat, having frontages on the same street and subject, so far as their respective widths are concerned, to a like extent of condemnation. The Schopp property has a frontage on Fourth Street of 62 feet and 6 inches, for which damages were awarded in the sum of $45,600, or more than $695 for each front foot. The Scott property has a frontage on Fourth Street of twenty-five feet, for which damages were awarded in the sum of $15,700, or more than $625 per front foot. A marked contrast between these valuations and awards and that of the Smith property is evident. In the latter the total valuation was $8,500, or $150 per front foot. Taking the disparity in these valuations into consideration, in the presence of other evidence which the record discloses of like conditions as to improvements in all of these properties, the inadequacy of the award in the Smith property seems beyond question.
V. The admission of testimony to show the diminution of the rental value of the Smith property by reason of the use of the adjacent sidewalk in appellants' business is urged as Sidewalk. error.
The relevancy of this testimony for the purpose for which it was introduced, is difficult to determine. The proof necessary to determine the measure of appellants' damages is the fair market value of the property. If, as Smith testified, he found it necessary at times in the transaction of his business to use a portion of the sidewalk, that use was purely permissive, and evidence in regard to such use, while it may have violated an ordinance, was irrelevant to determine the value of the property in a proceeding by the city to condemn the same. A review of this testimony, however, does not disclose its prejudicial character and appellants' contention in regard thereto is overruled.
VI. Instruction numbered 2, given at the request of the respondent, is assigned as error in that no testimony was Market offered as to the method prescribed in the instruction Value. for ascertaining the market value of appellants' property. The instruction is as follows:
"2. The court declares the law to be that the market value of the exceptor's property is not to be determined by the value of the strip appropriated to plaintiff, nor plaintiff's necessity of acquiring it, nor by its value to exceptor, but the market value is that sum which the exceptor could obtain if he wanted to sell it, but was not forced or compelled to sell, from one who wanted to buy it, but was not compelled to buy."
The authorities do not sustain the contention of the appellants that this instruction was error. In a number of cases we have held that in determining the market value of property in a case of this character, the measure of the damages is the price it will bring when offered for sale by one who desires but is not obliged to sell and it is bought by one who is under no necessity of acquiring it. [St. Louis, etc. Ry. Co. v. Knapp-Stout Co., 160 Mo. 396, 410; St. L.K. N.W. Ry. Co. v. St. L. Stock Yds. Co., 120 Mo. 541, 553; Metro. Ry. Co. v. Walsh, 197 Mo. 392.]
VI. The admission of the testimony of one of the commissioners is urged as error. The admission of testimony of this character has frequently been under review by this court. In St. Louis v. Abeln, 170 Mo. 318, 326, we held unqualifiedly that Commissioner commissioners may be called to testify as witnesses As Witness. in a proceeding to condemn property as in the instant case. This ruling, while absolute, is not satisfactory in that it is based wholly on the ground that no statute disqualifies such witnesses. The most satisfactory ruling is in School Dist. v. Phoenix etc. Co., 297 Mo. 332, 339, 249 S.W. 51, in which RAILEY, Commissioner, while holding that the testimony of such witnesses is competent, the fact that a witness was a commissioner who assessed the damages should not be permitted to go to the jury. The question was again under review in City of Cape Girardeau v. Hunze, 314 Mo. 438, 456, in which the ruling in the Abeln case, as modified in the School District case, was, impliedly at least, approved. We find nothing in the testimony of the commissioner in the instant case which militates against the rule as modified and no injury having resulted to the appellants their contention is overruled.
VII. Error was committed in striking out the testimony of the witness Buchanan. Neither of the parties stress this question in their briefs and we are authorized in concluding that it has been abandoned. For the errors noted the case is reversed and remanded to be proceeded with as indicated in this opinion. All concur; Blair, P.J., in Pars. I and IV, and the result.