Supreme Court of Missouri, 1931

State Ex Rel. Thomas & Proetz Lumber Co. & Destrehan Real Estate Co. v. Bader

Supreme Court of Missouri · Decided June 30, 1931 · Gantt

41 S.W.2d 168; 328 Mo. 253; 1931 Mo. LEXIS 411 (South Western Reporter, Second Series)

Counsel

Neuhoff Millar for relators. (1) The law of condemnation contemplates that the landowner shall not be divested of his property until the money value thereof has been ascertained by an award of commissioners and paid into court. Constitution, Art. 2, sec. 21; R.S. 1929, sec. 1342; State ex rel. Evens Howard Fire Brick Co. v. Lubke, 15 Mo. App. 152 . (2) The landowner in condemnation is entitled to his damages entirely in money and not partly in property or other things of value. R.S. 1929, sec. 1340 et seq.; Chicago, Santa Fe C. Ry. Co. v. McGrew, 104 Mo. 299 ; Nichols on Emineut Domain (2 Ed.) sec. 205, p. 625; Elliot on Railroads (3 Ed.) sec. 1244; Fletcher v. Peck, 6 Cranch, 145, 3 L.Ed. 162; St. L.K. N.W. Ry. Co. v. Clark, 121 Mo. 169 ; Sedalia v. Ry. Co., 17 Mo. App. 105 ; Elliot on Railroads (3 Ed.) 808, note 22. (3) While it is permissible to cut down the estate to be taken by the railroad, and thereby lessen the damages, this does not authorize the payment of damages by new and extraneous rights or privileges in lieu of money. Chicago, Santa Fe C. Ry. Co. v. McGrew, 104 Mo. 282 . The Clark case, relied on by Terminal Railway Company to justify its "reservations and conditions," is limited to reservations out of the estate taken. St. L.K. N.W. Ry. Co. v. Clark, 121 Mo. 169 . (4) The amended petition calls for a forced barter or exchange because the rights and privileges tendered the landowner were not carved out of his original estate in the land condemned. Chicago, Santa Fe C. Ry. Co. v. McGrew, 104 Mo. 282 ; St. L.K. N.W. Ry. Co. v. Clark, 121 Mo. 169 . (5) The statutes do not authorize condemnation on condition, but condemnation must be of an unconditional estate. R.S. 1929, sec. 1340; In re Condemnation of Lands; Milwaukee Elec. Ry. Light Co. v. Becker, 182 Wis. 182 , 196 N.W. 575. (6) The plaintiff Terminal Railway Company is not authorized to condemn land for the use and benefit of the Chicago, Burlington Quincy Railroad Company, who are not a party to the condemnation suit. R.S. 1929, sec. 1340 et seq. (7) The amended petition negatives jurisdiction in the circuit court because on its face (a) it purports to condemn by way of barter or exchange; (b) it purports to condemn conditionally; (c) it purports to condemn for the benefit of a railroad not a party, and jurisdiction does not attach to a proceeding where the petition shows on its face the absence of jurisdiction. State ex rel. Walker v. Dobson 135 Mo. 1 ; Chicago, etc., Railroad v. Young, 96 Mo. 39 . (8) Certiorari will lie at the present state of proceedings. (a) The writ of certiorari is the same in Missouri as at common law. State ex rel. Ry. Co. v. Shelton, 154 Mo. 692 ; State ex rel. Teasdale v. Smith, 101 Mo. 174 ; State ex rel. v. Dobson, 135 Mo. 20 . (b) Historically the use of certiorari before final judgment came first, and use after final judgment came later. Dissenting opinion in State ex rel. v. Shelton, 154 Mo. 670 , 694; State ex rel. v. Dobson, 135 Mo. 19 . (c) A condemnation suit differs from ordinary litigation in that the railroad acquires a vested interest as soon as the damages are paid into court upon the commissioners' report. R.S. 1929, sec. 1342; St. Louis I.M. S. Ry. Co. v. Pfau, 212 Mo. 398 . (d) The proceedings under the void petition have already resulted in unlawfully depriving the relators of possession and certiorari is the only adequate remedy. (c) Distinction must be made between two branches of the law of certiorari: 1st, It is true that certiorari in lieu of appeal lies only at the end of proceedings in the lower court. State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125 , 2nd. But certiorari for want of jurisdiction will lie at any stage of the proceedings. State ex rel. Walker v. Dobson, 135 Mo. 1 ; Rector v. Price, 1 Mo. 198 . (f) Total lack of jurisdiction of the court is never waived. Mississippi County v. Byrd. 319 Mo. 697 , 4 S.W.2d 811. R.I. Green and Anderson, Gilbert Wolfort for respondent. (1) The brief of relators admits that the original petition did not on its face negative jurisdiction. So the question here involved is whether attack can be made by certiorari, that the amended petition ousted jurisdiction obtained on the face of the original petition. (2) Certiorari does not pass upon the question as to whether the court below erred in its judgment in permitting the amended petition to be filed. State ex rel. v. Broaddus, 245 Mo. 123 ; State ex rel. Kilhenny v. Danes, 288 S.W. 14; State ex rel. Amusement Co. v. Trimble, 318 Mo. 274 ; State ex rel. Manion v. Dawson, 284 Mo. 490 ; State ex rel. Wabash Railroad Co. v. Bland, 168 Mo. 1 . (3) Certiorari will not lie except to a final judgment. State ex rel. v. Pearcy, 29 S.W.2d 83 ; State ex rel. v. Walbridge, 123 Mo. 524 ; State ex rel. v. Pfeffle, 220 Mo. App. 676 ; State ex rel. v. Court, 168 Mo. App. 29 . This ruling has been specifically made in condemnation cases. State ex rel. v. Goodrich, 257 Mo. 41 ; State ex rel. Mo. Pac. Ry. Co. v. Edwards, 104 Mo. 125 . (4) None of the questions sought to be raised by relators are jurisdictional; all relate to the amount of damages suffered by relators. The circuit court, on the trial by jury, has full jurisdiction to rule as to such measure of damages. Railway v. Railway, 94 Mo. 543 . (5) If reservations in the petition were void as claimed by relators in the hearing before the jury, the jury would be instructed to disregard them in determining relators' damages. (6) The amended petition states a cause of action, but even if it did not, the matter would still be within the jurisdiction of the court; for if the petition states a case belonging to a general class over which the authority of the court extends, there is jurisdiction and the court has the power to decide on the merits of the pleading. Winningham v. Trueblood, 149 Mo. 572 . (7) The condemning agent is not compelled to go to the full extent of the law, and is not compelled to condemn more than is required; reservations may be made to the property owner and in such cases the condemning agent is not bound to pay for the interest so reserved to the owner. St. Louis, Keokuk Northwestern Ry. Co. v. Clark, 121 Mo. 194 . And the condemning company by an offer in open court may bind itself to the performance of duties, and to the extent that such performance will prevent damages that would otherwise occur the condemning company may thereby breach a claim of the landowner for damages. The judgment in such case vests rights obtained by condemnation subject to the performance of such duties. St. Louis, Keokuk Northwestern Ry. Co. v. Clark, 121 Mo. 198 . (8) Certiorari considers only matters appearing on the face of the record. State ex rel. v. Clark, 9 S.W.2d 635 .

Opinion of the Court

*256 GANTT, J.

Original proceeding in certiorari. Relators seek to have quashed the record of the proceedings in St. Louis Electric Terminal Railway Co. v. Thomas & Proetz Lumber Co. and Destrehan Real Estate Co., pending in the Circuit Court of St. Louis. They are defendants in that suit. The Terminal Company’s road enters St. Louis from the east over the McKinley 'Bridge in North St. Louis. It is constructing an elevated railroad from the bridge southwardly to its station in the city. In furtherance thereof it filed the suit above mentioned to condemn a right of way over relators’ lands fifty feet in width and lying east of and contiguous to the right of way of the Burlington Railroad over relators’ lands. The original petition was conventional. Under it commissioners were appointed who proceeded with hearings on the question of damages. After one or more hearings, and before completion of their investigation, the Terminal Company filed an amended petition.

In that petition it seeks to condemn said fifty feet of land “upon the conditions that the elevated structure for double-track railroad is to be constructed as shown by the plans approved by the Board of Public Service of the City of St. Louis on June 17, 1930, and that surface track or tracks east of said elevated structure shall be built on the present grade of the ground hereby sought to be condemned, or at a grade not below the grade of the tracks of the Chicago, Burlington & Quincy Railroad, and shall be connected with the tracks of the Chicago, Burlington & Quincy Railroad between Destrehan Street and the McKinley Bridge; and, for the purpose of rendering railroad service to the parcels of land of said defendants adjoining on the east of said fifty-foot strip condemned herein, there is hereby reserved to said Destrehan Real Estate Company and said Thomas & Proetz Lumber Company, their successors and assigns, the right to the Chicago, Burlington & Quincy Railroad Company, its successors and assigns, to operate over any track which plaintiff may lay on the surface, in order that said Chicago, Burlington & Quincy Railroad Company, successors and assigns, may be able to render to said tracts of land of defendants the same service that said tracts *257 of defendants, adjoining said Chicago, Burlington & Quincy Railroad on the east, may be entitled to receive from said Chicago, Burlington & Quincy Railroad at the time of filing of this suit.”

After other hearings under the amended petition, the commissioners filed their report awarding damages to relators. The Terminal Company paid into court the amount of the award and entered into possession of the strip of land. Relators filed several motions challenging the jurisdiction of the court, because of the amendment to the petition. These motions were overruled. Thereafter relators and the Terminal Company filed exceptions to the commissioners’ report and motions for trial by jury. Thereafter relators filed motions to set aside the order of the court overruling their motions challenging the jurisdiction of the court. These motions were also overruled. Thereupon relators made application to this court for relief by our writ of certiorari.

Respondent contends that certiorari will not lie until final judgment is entered in a cause. Relators concede that certiorari in lieu of appeal or writ of error lies only after final judgment, but they contend that certiorari for want of jurisdiction will lie at any stage of the proceeding. They argue that the amended petition “shows on its face that the suit is not one for condemnation of a right of way upon payment of money damages as contemplated by the law and statutes relating to condemnation, but is a suit for a forced barter or exchange of extraneous rights and privileges for a right of way through petitioners’ property with merely the payment of the balance of the damages in money; that by said suit the Railway Company seeks to compel an acceptance by your petitioners, against their will, of licenses and privileges upon and in connection with the land of third persons not involved in said purported condemnation suit in part compensation for the right of way condemned, whereas the statutes of Missouri provide for condemnation only upon the payment of the damages in money; that for this reason said amended petition is not a proper petition in condemnation and is void on its face and does not confer any jurisdiction on respondent Honorable Arthur H. Bader, Judge of said Circuit Court, nor over the said property of your petitioners sought to be condemned. ’ ’ Therefore, they contend we were authorized to issue the writ, citing Rector v. Price, 1 Mo. 198 (Houck, 121), and State ex rel. Walker v. Dobson, 135 Mo. 1, 36 S. W. 238.

In the Rector case the chancellor before whom the cause was pending, had been of counsel for Price. In this situation the Legislature at their June session, 1821, passed an act directing him to certify the case to this court for trial. He refused to do so, contending that this court had only appellate jurisdiction. We did not *258 agree to tbe contention. The emergency was such that our writ was granted, and the case ordered transferred to this court by filing herein a certified copy of the record of the proceedings.

In the Walker case our writ of certiorari was issued directing a circuit judge to certify to this court for review a pending petition for a writ of habeas corpus. It was contended that the petition was not sufficient to confer jurisdiction. Application for our writ was made by the Attorney-General, and it was issued as of course. However, in the course of the opinion in that case we stated that “the issuance of the unit [certiorari] at the instance of an individual, will not go except in the exercise'of a sound judicial discretion.'”

Of course, we are authorized in this proceeding to determine if the trial court is proceeding in excess of its jurisdiction. However, it does not'follow that we should do so. Relators did not apply to this court for relief until after the Terminal Company had paid into court the amount of damages awarded and entered into possession of the land. In view of this, we think the-trial court should be given an opportunity to rule the question of its jurisdiction on-the trial of the issues presented by the exceptions to the report of commissioners. If the ruling of the trial court on the question of jurisdiction is adverse to relators, they have an adequate remedy by appeal.

It follows our writ should be quashed. It is so ordered.

All concur.

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