Kiebler v. Holmes

G-ill, J.

On February 27,1887, appellants Kiebler and Freeman were owners of a lot on east Ninth street,. Kansas City, and on that day there was an ordinance passed to condemn the north five feet of this lot, the purpose being to widen Ninth street in pursuance of authority given by-article 7 of the city charter of 1875. On May 9, 1887, Mrs. Wright, the respondent, purchased the lot from Kiebler and Freeman and took a warranty deed therefor. Thereafter, on August 25, 1887, on proceedings begun under the ordinance of February 27, the mayor’s jury returned a verdict assessing the damages to the lot on account of the proposed widening at $228 and this verdict was confirmed by the council on August 26, 1887.

Subsequently, when the special benefits were collected, the above amount was paid into the city treasury for the party entitled. At this point a controversy arose as to whether this fund belonged to Kiebler and Freeman or to Mrs. Wright, their grantee. Thereupon the city came into court and on its petition these conflicting claimants were required to interplead, as provided for in section 7, article 7 of the charter, and settle by judgment of the court as to who was entitled to said money. The circuit court decided in favor of Mrs. Wright, and Kiebler and Freeman appealed.

I. The judgment of the trial court was correct. The mere passage of the ordinance of February 27, 1887, did not amount to an appropriation of the real estate; nor did it commit any damage to which the then owner' was entitled. The city did not by the passage of the ordinance take the property. This was only the initial step looking to an appropriation or taking in the future. After passing such ordinance, and even after the proceedings were begun before the mayor to assess damages and benefits, the city might *123 have abandoned the condemnation because too expensive or for other reasons. Whyte v. City of Kansas, 22 Mo. App. 409 ; City of St. Joseph v. Hamilton, 43 Mo. 282 .

Until the mayor had instituted proceedings for assessing damages and benefits, and such assessments had been made by the jury and confirmed by the council, there could be no right to the strip of land vested in the city nor reciprocal rights vested in the landowner. It is only when the party seeking condemnation acquires a vested right in the property, that the owner has a vested right in the compensation. Whyte v. City of Kansas, 22 Mo. App. 409 . At the time the property was taken and the damages assessed Mrs. Wright was the owner, and she clearly was entitled to the compensation for such taking. Hilton v. St. Louis, 99 Mo. 199 .

That Kiebler and Freeman were made parties to the condemnation proceedings is of no consequence. As a matter of convenience the charter of 1875 provided, that it should be sufficient to bring in the owners who were such at the date of the passage of the ordinance providing for the improvement and that all such subsequent owners' should be bound thereby though not named in the proceeding. See Laws of 1875, p. 244, et seq. It has, however, been held that it was not only proper, but the better practice to make the person holding the title when the action to condemn was commenced a party in place of the owner at the date of the passage of the ordinance. Stewart v. White, 98 Mo. 226 .

The judgment will be affirmed.

All concur.